It’s been a long time coming but I’ve finally decided to weigh in on the discussion over the same-sex marriage plebiscite! I’ve avoided it so far, mostly because it seems to me that almost everything that can be said has already been said, but also I just don’t think marriage is that big of an issue compared to a lot of other LGBTIQA* rights. Don’t get me wrong, it is very important, particularly regarding the general social comment it makes that people in the LGBTIQA* community are ‘lesser’ than heterosexual couples. However, marriage tends to dominate discussions of rights when there are so many other important issues like, say, not surgically changing babies to conform to a female or male sex, or not requiring people who are transgender to undertake surgery to change the sex marker on their birth certificates. But, now that the Coalition has introduced the Plebiscite (Same-Sex Marriage) Bill on 14 September in the House of Reps, we have a bit more detail about what’s going to happen in the lead up to the plebiscite if the bill does get the support it needs. We also know that the wording of the question will be this:
“Should the law be changed to allow same-sex couples to marry?”
Unsurprisingly, this question is really disappointing from an intersex perspective and for everyone who doesn’t identify strictly within the sex/gender binary. It means that even if the plebiscite goes ahead, and even if a simple majority voted for the change, and even if the Marriage Act 1961 (Cth) is amended to allow for same-sex couples to marry, intersex people who identify as intersex or something other than male or female still cannot marry. I guess some of us are just more equal than others when it comes to marriage equality.
Given these developments I thought it would be a really good opportunity to have a closer look at what the law actually is regarding the legal recognition of intersex status/not identifying as male or female. It seemed to me that, on the face of it, intersex marriages would only be problematic if an intersex person chose to identify outside of the male/female binary. After looking through all the state/territory Births, Deaths and Marriages Registration Acts, amendments, other relevant legislation and the (albeit small amount of) case law I can confirm that yes, this is mostly true!
Looking through all this it appears that even if we do get legislation enacted that introduces same-sex marriage in its current phrasing, there are two scenarios when it comes to intersex marriages:
- If you’re intersex, you probably can get married if your birth certificate states you are female or male (although the case law throws a bit of a question mark over this as I’ll get to later). So if you’re intersex and you do identify as male or female then that’s great! Just make sure your partner is of the opposite sex for now until we get this legislation passed.
- However, if you’re intersex and you don’t identify as either male or female, then if you want to get married you’ll still have to pick one, even though that’s not really who you are. Otherwise, if your birth certificate states that you’re neither male nor female, you can’t get married.
After having a look at the different states and territories though, unsurprisingly it’s just not that easy to be legally recognised as anything other than male or female. Practically speaking then, this second scenario is not going to be all that common. But that’s not a good thing. It just shows that we have a big problem with the legal recognition of sex and gender identity. Fortunately the law is moving slowly in the right direction. In the ACT and NSW you can have sex descriptors that are not female or male on your birth certificate, and there’s a bill in the Victorian parliament at the moment that allows for sex descriptors that are ‘male, female or any other sex’. So once more intersex, agender, non-binary etc. people do become recognised, how we define marriage will become increasingly problematic for this group.
The situation currently regarding whether you can have your birth certificate registered as neither male nor female really depends on which jurisdiction you were born in or live in, since it is the states and territories that manage the registries of births, deaths and marriages. And of course, they all have their own rules. While there are some similarities, there’s no consistent legislation across the jurisdictions and it gets a bit complicated about what can be recognised on your birth certificate and whether any change would be recognised in another state. As I’ve mentioned, only two jurisdictions, the ACT following the 2014 amendments to the Births, Deaths and Marriages Registration Act 1997 (ACT), and NSW following the 2014 High Court decision in NSW Registrar of Births, Deaths and Marriages v Norrie  HCA 11 (‘Norrie’), allow for birth certificates to be changed to neither male/female. While it’s possible that other jurisdictions might also allow for something other than male/female following Norrie, it depends on the exact wording of the relevant legislation and how similar it is to the NSW model as to whether that is actually the case.
It’s also been super interesting to look at the case law on this! I’ve been told this next section gets a bit law heavy and I do apologise. I’ve tried to make it as clear as possible but even if it doesn’t make any sense, it’s all just reaffirming the points I’ve made above!
So back on track – there’s only been one case in Australia on intersex marriage in 1979 before the Family Court of Australia in Brisbane. The case, In the marriage of C and D (falsely called C), involved a man who, at the age of 21, underwent surgery that led to the discovery of his intersex variation. He then had further surgical operations to confirm his male sex assignment. His birth certificate stated that he was ‘male’, and he had been raised as and always identified as a man. He married a woman, and then, after about 11 years of marriage, his wife found out about his intersex variation. She sought an application for a declaration of the validity of the marriage, claiming that due to his condition her husband had been unable to consummate the marriage. What did the court decide? Well, not only did the court dismiss the application, but it also annulled the marriage, reasoning that an intersex person can’t legally marry since marriage can only be between a man and a woman. This outcome seems pretty ridiculous now, and it has been criticised since, particularly in the NSW Family Court judgment of Re Kevin in 2003.
Re Kevin however involved a female to male transsexual* person, and not someone with an intersex variation. Since some of the issues were a bit different, C and D was not completely overruled in this case and never has been which is a bit scary to say the least. However Re Kevin is still relevant – in this case it was held that the question of whether someone is a man or a woman is to be determined at the date of marriage, and it wasn’t necessary to look at the circumstances at the time of birth. Following this judgment, while an intersex person who identifies as male or female (including probably the husband in C and D) may now be able to validly marry, it seems that C and D is still likely to apply to those who don’t identify as either. In Re Kevin, Nicholson CJ listed a number of circumstances that strengthened the case that the husband was a man at the time of marriage, including that he had undertaken ‘a full process of transsexual reassignment, involving hormone treatment and irreversible surgery’. Since then, the High Court case of AB v Western Australia in 2011 found that it is not necessary to require surgery to obtain a change in gender recognition certificates in WA (thank goodness – although most state/territory Acts still require reassignment surgery). However, the point still stands that Re Kevin has left open the question as to whether intersex people who don’t want to or haven’t yet made a ‘final’ choice to live as either male or female can marry.
As I’ve said, there just hasn’t been much case law on these matters, and so while C and D was some time ago it seems that this is currently where the law stands, where potentially intersex marriages could be nullified if one of the parties in the marriage sought to do so, and where intersex people who don’t legally identify as either male or female cannot marry.
Coming back to the Coalition’s recently introduced bill. If eventually amendments are made to the Marriage Act 1961 as it is currently worded, intersex people will remain excluded from the right to marry. On the other hand, the Marriage Legislation Amendment Bill introduced on 12 September is much more inclusive and aims for true marriage equality. It was introduced by Labor and also separately by the Greens (Adam Bandt) along with two Independents (Cathy McGowan and Andrew Wilkie) on the same day. This bill seeks to substitute the definition of marriage to ‘the union of 2 people to the exclusion of all others, voluntarily entered into for life’. What’s more, it also seeks to include a section stating that ‘[t]he object of this Act is to allow couples to marry, and to have their marriages recognised, regardless of sex, sexual orientation, gender identity or intersex status.’ Maybe there is some hope after all!
*I’ve used ‘transsexual’ here as this was the term used in this case