Yesterday, the High Court, in a landmark decision for the Transgender and Intersex community, said that gender is not binary, its not a matter of male or female. The decision made by the Court was that in NSW, someone’s birth can be registered as “non-specific”.

How does this change things?

The Judges of the High Court rejected the argument that “unacceptable confusion” would result if more than two categories of sex were recognised. But the Court did acknowledge that there would be issues when it comes to marriage.

The Marriage Act 1961 (Cth) defines “marriage” as “the union of a man and a woman to the exclusion of all others, voluntarily entered into for life.” The relationship between marriage and someone’s gender was explored significantly in 2003 in a case called Re Kevin. In that case the Court said that the words “man” and “woman” in the definition of “marriage” in the Marriage Act 1961 (Cth) are to be given their “contemporary, normal and everyday meaning.” So in this case Kevin who was born with female genitalia and had subsequently undertaken sexual reassignment surgery, was deemed to be a man at the time of his marriage to a woman.

So what changes now is that anyone registered as being of “non-specific” sex in the NSW are unlikely to be able to be validly married within the meaning of the Marriage Act 1961 (Cth). This is a problem.

A more in depth article about this to follow soon so keep your eyes peeled. But in the meantime, if you want more advice about how gender may affect your family situation, give us a call.

Sam Cummings

Sam Cummings