First thoughts on the NSW Marriage Equality Bill

An inter-party group of parliamentarians in New South Wales have gotten together to establish a working group on marriage equality, and proposals have just been published in a consultation draft.

While we’re pleased to see a cross-party collaboration, we have to admit to some very significant concerns about the proposals.

Firstly, despite a suggestion from one quarter to the contrary, intersex people are not effectively included. One reading of the bill from our perspective is that it would allow us to marry other people who are also of “indeterminate sex”. This is better than not being able to marry at all, which is our reading of the current federal Marriage Act, but that’s contradicted by a single provision for people of “indeterminate sex” in a note on page 2 of the draft bill:

Note. The reference to people who are of the same sex is not intended to exclude persons who, although legally recognised as being of the same sex, are in fact of indeterminate sex.

This assertion that we’re all legally recognised as male or female is not actually true.

OII Australia members include people with a passport issued by the Australian government that shows sex as “X” (indeterminate/unspecified/intersex), which gives legal recognition as being of “indeterminate sex”. There are also people born in Victoria like Tony Briffa, who have no sex entry, or “indeterminate sex”, on their state-issued birth certificate. They, too, are legally recognised as being of “indeterminate” sex – and unable to marry anyone at present, in Australia. Some live in NSW.

Current federal marriage guidelines require people born in Australia to show a birth certificate on giving notice of intended marriage. Overseas-born people can provide a birth certificate or an overseas passport. Overseas-born Australian citizens, like all others, are not able to use an Australian passport as an identity document.

Currently, passport regulations recognise the existence of intersex people and offer an ‘X’ passport. At a state level, only Victoria permits this. People born in NSW, and in overseas jurisdictions that don’t legally recognise intersex, are left in limbo with a contestable status.

The same issue of conflicting status is true of trans people with different recognition at state and federal level, especially given that state recognition in birth certificates still requires their sterilisation in many cases (but at least they do have options to align their sex status with their identity, however unpalatable; intersex people are not able to align all our documentation with our sex in NSW). Add in a question about how a transitioning trans person deals with federal and state marriage requirements and this becomes little more than a partnership register for gay and lesbian couples, with a new name.

The draft bill’s problems extend far beyond our specific issues. Both marrying and divorcing parties need to be resident in NSW. A divorce must be initiated by an Australian citizen; pity an overseas national in an abusive relationship.

We signed up when requested last year with our logo on the NSW Marriage Equality site, but it’s incredibly difficult to see what we get out of this. The state actually provides little to nothing to its intersex residents. No state-of-the-art health policies, no protection from discrimination, no recognition that we might not be male or female, no community resourcing. Sadly, the addition of an I to any LGBT policy doesn’t achieve any of that.

We need to see more than this.

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