"The primary message is that many transgender or gender-nonconforming youth have identities outside of a gender binary
and that transgender and gender-nonconforming youth with different gender identities may have different strengths and challenges in different settings," Dr.
If U v U and Re Kevin drew upon sexist stereotypes to construct gender, more recent cases have reproduced a gender binary while dismissing it at the same time.
(102) Secondly, by not questioning the use of social recognition the High Court reproduced a gender binary despite claiming to abandon it.
In addition, this approach reproduces a gender binary. It reproduces a binary based on contemporary stereotypes whether sexist or not.
As such the law reproduces a gender binary based on contemporary norms and stereotypes about gender at the same moment it pronounces the binary as coercive.
It re-asserts the notion of a gender binary in the sense that male and female are normal and transgender is abnormal.
It was a laudable decision because it did justice for Norrie when the Act appeared to presume a gender binary and yet the High Court chose not to defer to the NSW Parliament instead preferring a beneficial interpretation of the Act The Act referred to 'opposite sex' in s 32A and made no mention of the term 'transgender' that featured in amending legislation inserting that word into Part 3A of the Anti-Discrimination Act, but did not do so in the Act at hand." (118) Before analysing the reasoning it is useful to consider the facts.
Norrie applied for a review of the decision in the Administrative Decisions Tribunal of New South Wales which found that even though Norrie did not identify as a man or woman or believe that the sex affirmation procedure had resolved her gender ambiguity, the Act only provided for registration according to a gender binary. Therefore it was not open to the Registrar to register Norrie's sex as 'non-specific'.
(123) The first ground was that the Act assumed a gender binary and if an intermediate category was intended it would have been expressly provided.
(137) So on the one hand the High Court was able to recognise gender diversity and able to reject the universal application of a gender binary. On the other hand it reasserted a gender binary that excluded non-binary gender categories.
In particular the law has drawn upon sexist stereotypes when it abandoned biological determinism, and it re-imposed a gender binary while declaring the gender binary to be discriminatory.