Recognition of Non-Binary Genders on Birth Certificates

Recognition of Non-Binary Genders on Birth Certificates: A Comparison of Biomedical vs Self-Identification Models Underlying State BDMR Laws, with Reference to Feminist & Queer Theories of Sex, Gender and Embodiment

This is the Project Proposal for my current Critical Research Essay for my Gender & The Law Course. I hope my readers appreciate it. I’ll be working on the actual Major Project which will be due in mid-October. Here is the published Major Project (critical essay) which achieved 60/60.

Introduction – Topic Outline

I will be investigating the different models of sex/gender underlying the current differences in legislation regarding change of sex/gender in Queensland[1] compared to more progressive legislation in Victoria[2] and Tasmania.[3] Queensland’s law requires ‘sexual reassignment surgery’,[4] defined as:

A surgical procedure involving the alteration of a person’s reproductive organs carried out – (a) to help the person to be considered to be a member of the opposite sex; or (b) to correct or eliminate ambiguities about the sex of the person.[5]

Births, Deaths and Marriages Registration Act 2003 (Qld), sch 2 (definition of ‘sexual reassignment surgery’).

In contrast, the Victorian and Tasmanian legislation has recently been reformed in 2019 to allow a person to make a declaration of their gender identity based on their own self-identification.[6] Thus, on a spectrum between the traditional gender binary based on the biomedical model and an acknowledgment of gender diversity, based upon an individual’s self-identification of gender identity, Queensland’s law is still closer to the traditional biomedical model, whereas Victoria and Tasmania are much closer to a more progressive self-identification model.

In exploring the legal recognition of gender reassignment more broadly, I will look at the case law related to non-binary genders such as Norrie,[7] Re Kevin[8] and AB v Western Australia.[9] For comparison with Australian jurisdictions, I will look at some international jurisdictions where legislation is arguably even more progressive towards a self-identification model, such as Argentina, as well as developments in international law such as in the Yogyakarta Principles regarding recognition of sexual orientation and gender diversity in human rights law.[10]

In terms of gender, I will be looking at both transgender and intersex, as well as non-binary gender identities more broadly. In approaching this topic, I have investigated beyond academic literature to explore the lived experience of non-binary individuals through media sources. Although not a major focus of my project, I will also touch upon some issues regarding intersex infants and children and ‘gender normalization’ surgery, primarily as a further source of understanding for how law and society conceptualizes sex, gender and embodiment.

[1] Births, Deaths and Marriages Registration Act 2003 (Qld), Part 4.

[2] Births, Deaths and Marriages Registration Act 1996 (Vic), Part 4A – Acknowledgement of sex, as amended by the Births, Deaths and Marriages Registration Amendment Act 2019 (Vic).

[3] Births, Deaths and Marriages Registration Act 1999 (Tas), Part 4A – Gender Identity, as amended by the Justice and Related Legislation (Marriage and Gender Amendments) Act 2019 (Tas).

[4] Birth, Deaths and Marriages Registration Act 2003 (Qld) s 22.

[5] Ibid sch 2 (definition of ‘sexual reassignment surgery’).

[6] By a ‘gender declaration made by the person’ in Tasmania: s 28A(2)(b), defined in s 3 as ‘a statutory declaration in which the declarant declares that the declarant identifies as being of the gender specified in the declaration and lives, or seeks to live, as a person of that gender’. By nominating a sex descriptor that they believe the person’s sex to be, together with a supporting statement from an adult who has known them for more than 12 months and believes the application is made in good faith: s 30A and 30E.

[7] Norrie v Registry of Births, Deaths and Marriages [2011] NSWADT 102; Norrie v Registrar of Births, Deaths and Marriages (GD) [2011] NSWADTAP 53; Norrie v NSW Registrar of Births, Deaths and Marriages (2013) 84 NSWLR 697; Registrar of Births, Deaths and Marriages (NSW) (2014) 250 CLR 490.

[8] Kevin & Anor v Attorney-General (Commonwealth) (2001) 165 FLR 404; Attorney-General (Cth) v “Kevin and Jennifer” (2003) 172 FLR 300.

[9] AB & AH v Gender Reassignment Board (WA) (2009) 65 SR (WA) 1; Western Australia v AH and Anor (2010) 41 WAR 431; AB v Western Australia (2011) 244 CLR 390.

[10] The Yogyakarta Principles: Principles on the application of international human rights law in relation to sexual orientation and gender identity (2006); The Yogyakarta Principles plus 10: Additional Principles and State Obligations on the Application of International Human Rights Law in Relation to Sexual Orientation, Gender Identity, Gender Expression and Sex Characteristics to Complement the Yogyakarta Principles (as adopted on 10 November 2017, Geneva); as discussed in, for example, David Brown, ‘Making Room for Sexual Orientation and Gender Identity in International Human Rights Law: An Introduction to the Yogyakarta Principles’ (2010) 31(4) Michigan Journal of International Law 821; Tom Dreyfus, ‘The “Half-Invention” of Gender Identity in International Human Rights Law: From CEDAW to the Yogyakarta Principles’ (2012) 37 Australian Feminist Law Journal 33; Michael O’Flaherty, ‘The Yogyakarta Principles at Ten’ (2015) 33(4) Nordic Journal of Human Rights 280; Michael O’Flaherty and John Fisher, ‘Sexual Orientation, Gender Identity and International Human Rights Law: Contextualising the Yogyakarta Principles’ (2008) 8(2) Human Rights Law Review 207; Matthew Waites, ‘Critique of “sexual orientation” and “gender identity” in human-rights discourse: global queer politics beyond the Yogyakarta Principles’ (2009) 15(1) Contemporary Politics 137.

Planned Theoretical Approach

In terms of the theoretical approach I will take in investigating sex, gender and embodiment, I will be utilising works of both post-modern feminists and queer theorists. I will be utilising theory developed through the genealogy of ‘doing/undoing/redoing of gender’ in the works of Candace West and Don Zimmerman,[1] Judith Butler,[2] and Catherine Connell. [3] Gayle Rubin’s essays, ‘Traffic in Women: Notes on the “Political Economy” of Sex’ and ‘Thinking Sex’ developed the concept of the ‘sex/gender system’ and its relationship to heteronormativity and diversity of sexual orientations and gender identities.[4] Similar to Rubin, Dean Spade[5] writes some more radical queer theoretical ideas which build towards an androgynous or genderless society. Jack/Judith Halberstam provides some very recent accounts of the application of queer theory from their lived experience of gender diversity.[6]

I will utilise the writings of Anne Fausto-Sterling[7] regarding a conceptual model of sex and gender which offers an alternative model that could be built upon in legal recognition of gender diversity. I will also investigate theories underlying the problematization of the binary of sex as a biological ‘fact’ opposed to gender as a ‘social construct’ – such as in the writings of Judith Lorber[8] – positing that sex as conceptualized in biology is itself a social construction. In critiquing the law’s construction of sex as based on biological criteria, I will explore the concept of ‘value-free science’,[9] as well as some of the science regarding the supposed biological/neurological differences (or lack thereof) between the sexes as part of the construction of the gender binary.[10]

Building on similar concepts of embodiment and the gendered body in queer theory, I will also consider some elements of cyberfeminism in the works of Donna Haraway,[11] particularly in relation to similar issues of the social construction of the body as a gendered object. Further, I will investigate the application of xenofeminist concepts of ‘gender abolitionism’ from Laboria Cuboniks and Helen Hester[12] and the potential application of these kinds of perspectives in conceptualising a sexless, genderless law.

[1] Candace West and Don Zimmerman, ‘Doing Gender’ (1987) 1(2) Gender & Society 125.

[2] Judith Butler, ‘Performative Acts and Gender Constitution: An Essay in Phenomenology and Feminist Theory’ (1988) 40(4) Theatre Journal 519; Judith Butler, Gender Trouble: Feminism and the Subversion of Identity (Routledge, 1990); Judith Butler, ‘Imitation and gender subordination’ in Diana Fuss, Inside/Out: Lesbian Theories, Gay Theories (Taylor & Francis Group, 1991) 13; Judith Butler, Bodies That Matter: On the Discursive Limits of “Sex” (Routledge, 1993); Judith Butler, Undoing Gender (Routledge, 2004); Judith Butler, ‘Sexual Traffic: Interview with Gayle Rubin by Judith Butler’ in Gayle S Rubin, Deviations (Duke University Press, 2012) 276.

[3] Catherine Connell, ‘Doing, Undoing, or Redoing Gender? Learning from the Workplace Experiences of Transpeople’ (2010) 24(1) Gender & Society 31.

[4] Gayle S Rubin, ‘Thinking Sex: Notes for a Radical Theory of the Politics of Sexuality’ in Deviations: A Gayle Rubin Reader (Duke University Press, 2011) 143; Gayle S Rubin, ‘The Traffic in Women: Notes on the “Political Economy” of Sex’ in Deviations (Duke University Press, 2012) 33.

[5] Dean Spade, ‘Intersectional Resistance and Law Reform’ (2013) 38(4) Signs 1031; Dean Spade, ‘Administering Gender’ in Normal Life: Administrative Violence, Critical Trans Politics, and the Limits of Law (Duke University Press, 2015) 73.

[6] Jack Halberstam, Gaga Feminism: Sex, Gender, and the End of Normal (Beacon Press, 2012); Jack Halberstam, Trans*: A Quick and Quirky Account of Gender Variability (University of California Press, 2018).

[7] Anne Fausto-Sterling, ‘The five sexes: why male and female are not enough’ (1993) 33(2) The Sciences 20; Anne Fausto-Sterling, ‘The Five Sexes, Revisited: The emerging recognition that people come in bewildering sexual varieties is testing medical values and social norms’ (2000) 40(4) The Sciences 18; Anne Fausto-Sterling, Sex/Gender: Biology in a Social World (Taylor & Francis Group, 2012); Anne Fausto-Sterling, Sexing the Body: Gender Politics and the Construction of Sexuality (Basic Books, 2020). Cf. Leonard Sax, ‘How Common is Intersex? A Response to Anne Fausto-Sterling’ (2002) 39(3) The Journal of Sex Research 174.

[8] Judith Lorber, ‘Believing is Seeing: Biology as Ideology’ (1993) 7(4) Gender & Society 568; Judith Lorber, ‘Using gender to undo gender: A feminist degendering movement’ (2000) 1(1) Feminist theory 79; Ivy Kennelly, Sabine N Merz and Judith Lorber, ‘What is gender?’ (2001) 66(4) American Sociological Review 598; Judith Lorber, ‘Gendered and Sexed Brains’ (2011) 40(4) Contemporary Sociology 405.

[9] Timmer, Jaap, ‘Biologically Constructed’, Culture Matters: Applying Anthropology (2015) <>; Barbara J Risman, ‘Calling the Bluff of Value-Free Science’ (2001) 66(4) American Sociological Review 605.

[10] For example, Cordelia Fine, Rebecca Jordan-Young, Anelis Kaiser and Gina Rippon, ‘Plasticity, plasticity, plasticity … and the rigid problem of sex’ (2013) 17(11) Trends in Cognitive Sciences 550; Cordelia Fine, Testosterone Rex: Unmasking the Myths of our Gendered Minds (Icon Books Ltd, 2017).

[11] For example, Donna Haraway, Simians, Cyborgs, and Women: The Reinvention of Nature (Taylor & Francis Group, 1991).

[12] Laboria Cuboniks, Xenofeminism: A Politics of Alienation (@Xenofeminism, 2015); Hester, Helen, Xenofeminism (Polity Press, 2018).

Planned Structure

I am considering a tri-partite structure:

  • Firstly, considering the position at law, in terms of legislation and case law;
  • Secondly, introducing the two basic models of sex/gender – the biomedical model and the self-identification model, including some of the theoretical underpinnings of these two models;
  • Finally, investigating various aspects of feminist and queer theories that engage with these differing understandings of sex, gender and embodiment.

I will utilize these theoretical perspectives to question and problematize the current dominant paradigm in Australian State law, following the biomedical model and requiring surgical intervention and expert medical evidence in order to acknowledge gender identity, as well as critique the current state of more progressive BDMR regimes which lean towards the self-identification model. This will include a discussion of the potential for a sexless/genderless law, discussing both its possibilities and the critiques for why this kind of radicalism may create issues of its own.

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