Last month, the Australian government made international headlines for being the first to officially recognize a third gender on a state-issued document. Just days after conferring the new “sex not specified” status, the government rescinded the certificate, leaving a raging controversy over the definition of “gender” in its wake.
The “sex not specified” status legally recognized Norrie May-Welby as neither male nor female. May-Welby was born in Scotland and registered as male at birth, but underwent sex change surgery 20 years ago. The government of Australia then issued May-Welby a female recognition certificate. May-Welby subsequently ceased lifelong hormone treatment and adopted a “neuter identity” which is neither male nor female. According to news reports, doctors recently said because Norrie had stopped taking female hormones several years ago, they were unable to determine gender.
The New South Wales (NSW) Births, Deaths and Marriages Registry then issued a ‘Sex Not Specified’ certificate. Most Australian states or territories allow any person who is at least 18 years of age, unmarried and has undergone a “sex change” may apply for alteration of sex determination in that jurisdiction’s birth register or apply for the “Recognized Details Certificate” acknowledging their name and sex.
After the certificate was issued and based on subsequent legal advice, the NSW Registry reversed itself, and said the “sex not specified” certificate was invalid because the registrar may “only issue a recognized detail certificate or a new birth certificate following a change of sex in either male or female gender.”
Last year, the Australian Human Rights Commission recommended state law be changed to allow people 18 years or older to nominate a non-specific gender on documents and records.
May-Welbey and the Sex And Gender Education (SAGE) lobby group have lodged a complaint with the Australian Human Rights Commission arguing that May-Welby’s rights were breached under the Australian Sex Discrimination Act 1984 and international human rights law, which they argue “protects a person’s right to self-determine their own social identity.”
There has been a long-standing debate over “gender” at the United Nations (UN). Just last fall, Member States argued over a report written by UN Special Rapporteur Martin Scheinin, which single-handedly attempted to redefine gender as a social construct, contrary to several official UN definitions of the term. Scheinin asserted that “gender is not static,” but rather “changeable over time and across contexts.”
“Gender” has been defined three times in UN documents. Two non-binding UN conference outcome documents – the 1995 Beijing Platform for Action and the Report of the Conference on Human Settlements held the following year in Istanbul – consider “gender” to be “understood in its ordinary, generally accepted usage.”
The Rome Statute of the International Criminal Court, which is binding upon ratifying nations, states that gender “refers to the two sexes, male and female, within the context of society.” The Rome Statute of the International Criminal Court will be reviewed in Uganda this spring and critics are on high alert for any attempts to re-open the gender debate.