The inequality of marriage equality

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.

heartGiven 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:

  1. 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.
  1. 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 [2014] 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!

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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.

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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

What’s in a label?

Today I’m writing about the use of the ‘intersex’ label, why most people with intersex variations don’t use it, and what difference labels make anyway. As I always like to preface, I don’t speak for all intersex people, and these are just my own thoughts and general perceptions from what I’ve read elsewhere.

I find this topic interesting because for me, finding out that I had this particular “condition” was completely fine, but finding out I was “intersex” bothered me quite a bit. I think this in itself is very telling about my own associations with the word and the thought that maybe this changed who I was in some way.

label

I first found out about my “condition”, as it was so called, when I was 18. It really just did not bother me at all. In fact, I thought, and still do, that I had a way better deal than everyone else.

No doctor ever used the term intersex though, and looking back I suppose in one sense there was never a strict need to – they told me what my body was like, that this was the name of the condition and what options I could take if I wanted to change my body. For the most part my doctors dealt with me pretty well, and I was fortunate enough to be old enough to understand and make my own decisions. On reflection, though, I would have much preferred a doctor to use the word intersex, and tell me what it meant. Instead, I stumbled across the term and its applicability to me by chance years later. I was up late one night doing research for a law essay and I was skimming over the 2013 Senate report on Involuntary or Coerced Sterilisation of Intersex People in Australia, thinking how on earth have I lived this many years of my life without knowing that this exists. The report then listed a number of intersex conditions and it was at that point that I realised that these things not only happen, but happen to people like me.

Maybe not everybody would like to know they’re intersex, but by not ever using the term my doctors shut me out from knowing that a whole distinct community existed, while also reinforcing notions of what male and female bodies should look like. This could have been an opportunity to open my mind earlier to the idea that you could be neither or fall somewhere in between, and that it is actually far more common than I was led to believe. I think being aware of this would be really helpful, particularly if you’re young and still developing. It also meant that it was only much later and, as I said, by chance, that I started to think about the systemic issues that face intersex people generally, or indeed had the thought that I could identify as an intersex person.

Most people with intersex variations don’t (at least openly) use the label. I suspect at least part of the reason is because some of them may not know their particular variation falls under ‘intersex’, as was my experience. Perhaps another reason is because it often seems unnecessary for the most part – people generally relate to others based on their gender and not their physical make-up. Someone might have really long legs, or curly hair, or green eyes, but these are just physical characteristics they have and they may not see these attributes as an inherent part of their identity. In the same way, a number of intersex people may refer to themselves as having intersex status, but otherwise identify as a man, woman, non-binary, gender fluid etc.

I’ve started using the label mostly because it’s easier to talk about the broader issues faced by people with these variations, and not just particular challenges faced by people with my specific variation. I suppose what I’m still getting used to is that all labels have particular associations and stereotypes attached to them, even when there’s a huge amount of difference between the people and experiences under any one label. Nevertheless, having a label does make a big difference – it often means having a community to connect with, greater accessibility to information, and, as is my main reason for using the intersex label, it means having the language to start talking about these issues with other people. Without labels, we pretend that everyone is the same and silence differences from the start.

For some other thoughts on this topic, I’ve run some questions by my mate Cody. Cody is a couple of years older than me and identifies as intersexed/agendered. They grew up subjected to various medical tests, often without fully understanding what they were for, before learning they were intersex at the age of 17. Cody’s been thinking about these issues for a lot longer than I have, and has kindly allowed me to share their insightful comments!

Why do you identify as intersexed?

I mean the short answer is that we don’t live in a world that is kind to people born intersex. Reform needs to happen, discussions need to facilitate that reform, and those discussions need to involve as many intersex voices as possible.

So first and foremost, I openly identify as intersex because I want to stand up and be counted in that discussion. It matters to me that I could help change the intersex narrative from one of well-intended harm, disenfranchisement and loneliness into one that’s more positive.

It’s also been important to me because it’s helped me find others. My variation was always described to me as one in a million and as something other people didn’t go through or talk about. Being visible helps me find people, and for them to find me. At the end of the day, I can put so much shame to rest.

Has the use of the label ‘intersex’ changed how you see yourself?

Yes and no.

There was a point in time where it felt like this was reason I was the way I was. Why I was so deeply uncomfortable with being feminised. Why I didn’t seem to be growing out of a tomboy “phase”. Why I felt afraid in hospitals and uncomfortable around doctors. Why I hated so many coming of age milestones that my friends more readily embraced. It felt like I had been given the last pieces of a jigsaw puzzle.

What it actually meant was that I was given the first pieces of a whole new jigsaw puzzle. It gave me a starting point to explore concepts of sex and gender that I hadn’t before. I found trans and genderqueer communities online where I could safely explore what gender meant to me. To me, that ended up meaning chest binding and cross-dressing, mixing up pronouns, and taking a gender-neutral name. I eventually came out to people as agendered. As a label, that’s had far more impact on how I see myself. So whether I am agendered because I am intersexed seems like a moot point. To some extent it makes me feel like I’m living my truth as authentically as possible, but in actuality it allows me to feel safe and happy. These days, I hold onto intersex as a label because of what it allows me to do, and how it helps other people.

Do you have any problems with the use of the intersex label for yourself?

No. It describes something I am, experiences I’ve had, and rights I’m fighting for. I’m proud of all of that. I wouldn’t be out if I wasn’t.

Why do you think most people with intersex variations don’t identify as intersex?

I think for a lot of people, being intersexed is just not that big of a deal. It hasn’t particularly changed or impacted their life. Most are happy healthy people, and there’s no point in giving other people a reason to think of them differently. When you see how other identities are picked apart and scorned by wider society, it makes perfect sense. For plenty of people, there’s also an inherent fear of being vulnerable when being open about something like that. It gives the jerks of the world something to attack you with. Even good people can get the wrong idea sometimes. While we may live in a society that isn’t openly hostile towards intersex, it’s not hard to envision ways in which that could happen, whether it comes from medical pathologisation or ending up as the next punching bag in the queer rights movement. In fact, all you have to do is look into the history of the word “hermaphrodite” to see how badly intersex has been misunderstood, stigmatised, even fetishised. The fact of the matter is, many intersex variations are invisible, and there’s little incentive to be visible.

What was your reaction when you first heard the term intersex?

It was at the same time as I found out [about my variation]. I remember being mostly confused. There was obviously only so much my mum knew and could pass on in a single conversation. It took a lot of reading just to figure out enough to really react to anything.

Do people treat you differently once they learn you’re intersex?

Broadly no. There was a bit of nastiness with someone who had started telling people I was transgendered. A couple of people who decided to remove themselves from my life spared me some angst I’m sure. For the most part, though, friends have been wholly supportive.

A lot of my family found out the whole truth towards the end of last year, when my story was featured in a news article. It really seemed to break down some barriers. It helped them understand my quirks a lot better, and gave them reason to be proud of me.

If anything, I feel like I get the most inconsistent treatment from doctors. With particular issues it sometimes seems they get too focused on turning it into a “weird intersex thing”. I understand how they might feel the need for caution, but I actually think it comes down to education, and how this topic is dealt with from medical school to medical school. Thankfully, there seems to be plenty of doctors coming through who are more conscious of these issues. Trying to reach out to the wider medical community that are more set in their ways feels like yelling at a brick wall though.

I have also dealt with some hostility from intersex people who feel that I can’t best represent them while also making a case for queer identities and rights. It’s unfortunate, and it’s something that needs to be addressed within the community, but I’m not about to let that stop me standing up for myself.

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I’m so grateful that Cody has allowed me to share their thoughts and offer another intersex experience! I would also be really interested to hear about how other people first reacted when they were initially confronted with various labels that could describe/be applied to them – anything from mental health, to physical conditions or other LGBTIQA+ identities. Did it change how you saw yourself? Did you embrace the term, or reject it?