Senate inquiry supports marriage equality, talks about intersex

The Senate has today tabled its report on marriage equality. The report makes significant reference to the needs of intersex people in its majority report statements in support of marriage equality. On page 11 it states that,

“intersex and transgender people should be recognised in the definition of ‘marriage’ in the Marriage Act”

as one of the “principal arguments advanced in support of marriage equality” in evidence submitted to the inquiry.

Page 21 presents the issues clearly, and makes reference to written and oral submissions by OII Australia:

Recognition of the rights of intersex and transgender people

2.34 Some submissions and witnesses argued that the issue of marriage equality is not only about lesbian and gay couples, it is also an important issue for intersex and transgender people, who are often overlooked in the debate on marriage equality for ‘same-sex’ couples.

2.35 The committee was informed that the current definition of ‘marriage’ in the Marriage Act does not provide clarity for intersex and transgender persons on the validity of their marriages, and the limited case law in this area does not appear to have provided certainty on this issue.

2.36 The Organisation Intersex International Australia observed that the Marriage Act currently defines marriage as between a man and a woman, but ‘makes no attempt to clarify exactly what a man or woman is’. The Organisation Intersex International Australia referred to the Family Court of Australia case of C and D (falsely known as C) (C and D) where the court considered the validity of the marriage of an intersex person:

Intersex [people] are not wholly male or female and in the matter of C and [D] his honour found that being of indeterminate sex [, intersex persons] were barred from marriage. The intersex individual in that matter had undergone significant surgery to confirm a male sex assignment and had cardinal documents revised to reflect that surgery…

2.37 Some submissions also referred to the case of Re Kevin: Validity of the marriage of a Transsexual (Re Kevin), a case involving the marriage of a person described as a ‘post-operative female to male transsexual’ to a female. In Re: Kevin, the Family Court at first instance found (and upheld on appeal to the Full Court) that ‘Kevin’ was a male at the date of his marriage, and as such, his marriage was valid under Australian law. The Inner City Legal Centre contended that the case of Re Kevin ‘disapproved the ruling in C and D’, namely:

The finding in [Re Kevin] would have the effect that if an intersex person were to adopt a gender…then that person would be entitled to marry someone of the opposite gender.

2.38 The Organisation Intersex International Australia disputed that Re Kevin has settled this issue for intersex persons who have adopted a gender, arguing that ‘irrespective of surgery or other medical interventions if [a person] is born Intersex [that person] remains intersex’…

2.40 A number of submissions recommended that any amendments to the Marriage Act to provide for marriage equality for same-sex couples should also address the issues faced by intersex and transgender persons.

We’re glad that the Committee’s decision received cross-party support, as also did the NSW Legislative Council in its motion calling on the federal parliament to support marriage equality.

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