Gina Wilson writes on the NSW Marriage Equality Bill

OII Australia was recently invited to attend a briefing on the proposed NSW Marriage Equality bill at parliament house and Gina Wilson attended as president of the organisation.

A number of issues were discussed in respect of intersex people. It is now possible for intersex people to have an ‘X’ as sex designator on their passport and in Victoria to have a birth certificate amended to “sex not specified”.

The federal marriage act makes it clear that any “federal marriage”, currently the only possibility, must be between a man and a woman. The proof needed to establish both acceptable age and sex is, for all Australian citizen, a birth certificate; for those born overseas its is either a birth certificate or a valid overseas passport. New Zealand now allows people to have X as a sex designator on their passport and an increasing number of European countries are close to following suit.

Given these developments it is becoming increasingly clear that many people in Australia and many more born overseas will be unable to marry under the current federal act.

OII Australia has long been aware that intersex people face difficulties in respect of marriage if their biological sex was challenged. That awareness is informed by legal precedents in Victoria and in the Family Court of Australia that has found intersex people, irrespective of assignment on birth certificates, are not technically male or female within the meaning of the marriage act. The use of X as a sex designator simply underlines an already established principle, that intersex people cannot marry.

Consequently OII Australia had hoped the proposed Marriage Equality bills being put to the Tasmanian, South Australian, Victorian and now NSW legislators would address this deficiency by allowing people to marry even if their sex is not specified. All of the proposed state bills are based on the Tasmanian original, using much of the same wording.

When we put our concerns regarding intersex people’s inability to marry under federal law and our hope that the state based legislation would permit it, we were informed directly and shortly at this briefing that intersex people could not marry under the proposed NSW bill. The NSW bill follows those in all other states in not including intersex.

In my view this means that the legislation should not be called ‘Marriage Equality’ legislation. I say that for two reasons. The first and obvious one is that it is clearly not equality legislation. It is legislation that allows for same-sex marriage, just as the long title of the bill suggests.

The second reason speaks to the real problems faced by intersex people when legislation like this is proposed, and that is one of our invisibilsation. A marriage equality bill gives the impression that all people can marry either under federal law or state law. Intersex people are then left on their own with a tiny voice, and no resources, to draw the broader community’s attention to the fact that we still cannot marry, and that the legislation is not inclusive, and we may have to do that over the noise of front page same-sex marriage glitterati and beaming social media announcements.

To call the bill a same-sex marriage bill would at least leave space for the voices of those not included to be heard, and even for those who can marry to advocate for those of us who can’t in the course of their celebrations.

OII supports marriage rights for same-sex people and we have long been participants in the campaign for same-sex rights. In supporting same-sex marriage we have always proposed that marriage should be inclusive so that adults who are able to freely consent to marriage might be able to. We are increasingly concerned, however, that proposals to expand the rights to marry are being portrayed as equality, and that a variety of excuses are used to justify the exclusion of intersex people while retaining the language of equality.

The recent changes to law in the United Kingdom is a case in point. Intersex people are completely excluded in those changes, and transgender people are still required to divorce under the un-amended terms of their Gender Recognition Act. That law is consistently referred to as marriage equality law when it is nothing of the sort.

Intersex people are not included in federal marriage law in any way. The clearest possible case for expansion of marriage law without trespass on federal law is the case for the right of intersex people to marry. While same-sex marriage is fraught with possible trespass, and the proposed legislation abounds with language to make a clear distinction between state and federal law to neutralize a court challenge, no such exercise in convoluted language is necessary for intersex people.

The right of intersex people to marry in no way compromises a law where intersex people are only vaguely recognized, and the apparent attempt to prevent same-sex marriage cannot apply to a union where at least one of the couple does not have a sex specified.

It confounds me that those drawing the current batch of marriage law proposal find it so difficult to include intersex.

One other issue that I raised was the requirement for trans people to divorce in order to amend their birth certificate. Under the proposed “marriage equality bill” a transgender person will be required to divorce to amend their birth certificate then to remarry under state law.

The law demanding divorce is the state’s birth certificate amendments act. Though those proposing this bill are aware of this apparently crazy inconsistency, none are prepared to see the state law amended so that divorce is no longer a requirement. I can see the problem that if they were to allow changes to birth certificates without federal marriages being dissolved they would be in effect allowing same-sex marriages under federal law.

See also: First thoughts on the NSW Marriage Equality Bill

Update 2016: Please note that a survey of 272 Australian born with atypical sex characteristics shows that 12% of respondents are lawfully married in Australia, while 8% are in marriages that are not legally recognised here. This data changes our understanding of the situation – clearly intersex status is no longer being used as a mechanism to annul marriages.