Opinion by Chris Somers: No taxation without representation – equal marriage rights for all of Australia’s intersex citizens

An intersex person or any other Australian should be permitted to marry those they love, cherish and respect in order to live their life with integrity and under the full sanction of Australian law.

Why? For the simple reason that they are obliged to pay taxes like everyone else. Yet, there is a massive disparity between those who do not fit comfortably within the common understanding of what it means to be a man or a woman regardless of whether they may or may not be aware of being intersex, and all other citizens.

Penalizing intersex citizens or forcing them to lie in order to marry is against one’s human dignity and invests shame upon those who are required to do so. This shame is not of their making but is an intimidation tactic with the intention of erasing those who do not fit a limited view of the world by a supposedly sophisticated society and yet who have a legitimate right to exist despite their biological differences.

Intersex people are people who, as individuals, have congenital genetic, hormonal and physical features that may be thought to be typical of both male and female at once. That is, we may be thought of as being male with female features, female with male features, or indeed we may have no clearly defined sexual features at all.

The common and other laws of many countries need to be amended from time to time in order to take into account the up and coming knowledge of the times. The law should not unfairly discriminate against the people they have been designed to help and must maintain a sense of natural justice and protection, and must not infringe upon anyone’s ability to live.

Common law should not be a hindrance to those wishing to marry and who are intersex. If the law is found to be out of date in regard to citizens born intersex or androgynous – those who may be lesbian, gay, bisexual, transgender, transsexual, heterosexual or other – then it must be updated to take their existence into account.

A person who generally respects and honestly up holds the laws of their country should be duely appreciated and allowed to marry for the right reasons of caring for and cherishing the person they wish to remain in union with for their lives. They should not be consistently discouraged, debarred or disadvantaged just because they were born differently to another through no fault of their own and yet are still considered human – in this instance those who are intersex.

Intersex and current scientific knowledge

Current scientific knowledge continues to reveal differences within human sex and gender that only a very few decades ago were considered inconceivable except in mythology or in exceptionally rare instances. Research continues to reveal not only that there are various marine life forms and fish such as the Barramundi that are intersex or hermaphrodite but also other animals and humans who are to a greater or lesser degree a natural mix of sexes or genders and where this has little or anything to do with the effect upon their bodies of artificial or natural endocrine-disrupting pollutants.

It is becoming clearer that those who are intersex exist in far greater numbers than was previously thought possible. In Australia alone the intersex population may well be in excess of 200,000 people – roughly the size of our indigenous population. That these numbers might once have been thought impossible is partly due to the fact that there was and still is a certain degree of medical subterfuge or unwillingness to look beyond the square that binds some of them in their thinking. In many cases being born intersex is not a hindrance to one’s life just as as being “norm-born” is not a hindrance to one’s life.

A marriage is apparently based upon whether one is a man or a woman, but it is becoming far more difficult to ascertain exactly what we mean by a man or woman, by male or female.

marriage means the union of a man and a woman to the exclusion of all others, voluntarily entered into for life.

… Part 1. Preliminary; Section 5; P. 2. ma196185. Marriage Act 1961; Act No. 12 of 1961 as amended; This compilation was prepared on 19 April 2011; taking into account amendments up to Act No. 5 of 2011.

Man and woman – a degree of plasticity

There appears to be a degree of plasticity in the determination of what may be either of these limiting definitions – man and woman – even within the law aside of common law itself which is in some cases exceptionally naïve. This naïvety should not stand in the way of commonsense or fairness.

I will quote here from a paper that was given almost 12 years ago concerning legal definitions in reference to sex and gender and presented by invitation to the 14th Annual Australian and New Zealand Society of Criminologists conference. The paper reveals some disturbing and conflicting assumptions in reference to common practice, as this extract reveals:

While dictionary definitions give us meanings rather than meaning, they may also reveal conventional understandings.

In Black’s Law Dictionary by Henry Campbell Black, M.A. (1979) for instance it defines:

FEMALE: The sex which conceives and gives birth to young. Also a member of such sex. The term is generic, but may have the specific meaning of woman, if so indicated by the context. ( P.556)

FEMININE: Of or belonging to females. (P.556)

MALE: Of the masculine sex. (P. 862)

N.B.: There is no definition in this book for MASCULINE.

SEX: The sum of the peculiarities of structure and function that distinguish a male from a female organism; the character of being male or female. (P1233)

More up to date editions of law and other dictionaries are not so much different for instance: The Oxford English Dictionary (1989) volume IX:

MALE: of or belonging to the sex which begets offspring, or performs the fecundating function of generation (P.259).

MAN: A human being (irrespective of sex or age) a) used explicitly as a designation equally applicable to either sex. (The generic use as in humankind)
b) in modern apprehension man as thus used primarily denotes the male sex, though by implication referring to women.

It can be seen that there is a disparity between male and female and the definitions are so loose that the legal terminology would find great difficulty to pin point any absolute definition upon and of the genders and or sexes that appear to exist.

From the few interpretations above it is interesting to note that a female is a person that is able to procreate – What does this limiting definition actually mean.

The dictionary makes the essential criterion for defining a female by her reproductive capacity. However we know that in practice a woman who has a total hysterectomy and bi-lateral mastectomy does not thereby sacrifice her status as a woman and become a man. Technically should she now be classed as a transsexual (female to male) and denied her original status? Further would she be refused access to the women’s room and to claim herself to be a woman? Society has enormous sway and this same woman who may have castigated the “others” in society now finds herself in a situation where she becomes the “sexually negated person” within the community – Why? Her body image has changed… In order to disguise herself and in her fear of being singled out for being less than female she feels compelled to subject herself to extensive make-overs, prostheses and other devices to camouflage the omission of the essential defining quality. (This is to make gender identity the sole criterion. Do you want to do that?) She is the same person she intrinsically believes she is and was.

It will be seen by the definition of male that we have no defining definition for masculine within the same legal dictionary. And in the Oxford English Dictionary “Man” contains some six pages of the history of the concept and some rather ambiguous generic references which include both male and female. In this same dictionary on page 421 “Masculine” is defined as 1. Of persons or animals: belonging to the male sex.

In medicine sex is determined through the chromosomal ‘norms’ that a male’s genetic configuration is 46 XY and a female’s is 46 XX.

… Somers xxy, C. 1999. Pp. 1-3. Sexing the Difference in Gender and the Anomalies of Interpretation

However it is becoming clearer that which was considered normal before is not necessarily the case any longer and that there are more variations on the theme of what it means to be a legitimate member of the human race and naïve assumptions can no longer rule based on fear of difference alone. Thus just because:

In the matter of marriage rights if the law is changed to allow for same sex marriage people who are intersex will still not be able to marry unless they agree to conform to male or female sex anatomies and effectively have their intersex erased.[274]

… Comment 62 P.7. http://www.hreoc.gov.au/human_rights/lgbti/lgbticonsult/report/section12.html accessed 29/10/2011.

This now flies in the face of the recent changes to passports policies where intersex people who are happy to disclose their intersex on passports can do so with an X in the sex field. On the other hand this choice is rendered ludicrous if they have to continue to lie to enable themselves to be married. The author of this article was required to do precisely that if they wished to marry the person they loved. On August 10th 2002 Julie Butler reported in The West Australian newspaper on page 5 in a clinching headline:

Groom’s Intersex Quandary

Chris Somers would like to start marriage with the truth. But the law recognizes only marriage between a man and a woman – and Chris is neither.

… Extracts above and below, Butler, Judith. 2002. P5. © The West Australian 

Butler then goes on to explain a little of Somers’ physical body (phenotype), chromosome count (karyotype) which is 47 XXY and psychosocial presentation (gender) and lets the reader know that two doctors have verified Chris’ intersex status and reveals that Somers has a bride-to-be. Butler goes on to say “The hitch is that Chris would like to marry as an intersexed [sic] person and have the marriage recognized legally.”

Butler further quotes Somers as saying “I would like the law and my marriage certificate to acknowledge my reality as an intersexed [sic] person who has chosen to marry another who is in the accepted genre of being classed a female.”

Butler goes on to write that a spokeswoman for Federal Attorney-General Daryl Williams said yesterday that change was not on the radar. “The law presently recognizes marriage between a man and a woman,” she said. “We don’t contemplate that there will be any change in respect to intersex people.”

Julie Butler continues with her report on the same page saying, “Tony Briffa, president of the Androgen Insensitivity Syndrome Support Group, said Victoria recently allowed people of indeterminate sex to be recorded as such on their birth certificates. But he said until the marriage issue was addressed, intersex people ran a risk that their marriage might not be recognized later in key areas such as property, insurance and medical powers of attorney.”

“[Tony] Briffa said that intersexed [sic] people were more common than those with Down(s) Syndrome, but attracted little research interest. The latter is what Chris wants to emphasise.”

“If the law does not recognize us as being people we are a lost statistic and appropriate research and facilities are not (allocated) to help us,” Chris said.

“These issues must be addressed at the highest levels because we are not going to go away. It is not just about me. What will happen if you have a child like me?”

Marriage for intersex without undue bias?

Thus if we are to believe we are a civilized society then a marriage is not based solely on religious grounds alone if at all. It is probable that there is a reasonable degree of plasticity for almost anyone to be married without undue bias.

For example, I have rarely if ever heard a church leader or other leader defy the right of an atheist or agnostic to get married. They do not appear to object even when being married in a church may be done solely be for the romantic touch, though this appears on the surface as hypocritical if they do so. Perhaps the churches or various religious groups or orders hope the married couple will get converted in time?

Thus if a marriage is primarily based on Christian and or other beliefs, or none at all, whether between a “man” and a “woman” and where in modern science a “male” or “female” is no longer so easily defined do other criteria have to come into play?  If we are truthful, it is almost impossible to accurately define either of the accepted sexes or genders due to a myriad of differences in the biology of each human being.

People such as I, and many others different from me who are also intersex, should be allowed to marry anyone with integrity to live their life with those they love and cherish dearly.

A woman is presumably still a woman even after she may have been unfortunate enough to have lost her uterus, ovaries and breasts through excision due to radical surgery as a result of debilitating cancer and thus be allowed the rights of marriage.

It is unlikely that she would not be prevented from marrying despite some misgivings as to her womanhood as a result of having her usual defining attributes eliminated as indicated earlier in this article. This being so whether or not she was formally able to give birth to a child prior to her cancerous state.

In conclusion

Those who are intersex or androgynous – whether they are lesbian, gay, bisexual, transgender, transsexual, heterosexual or other – all pay their taxes and yet it seems that some are not given their fair representation as fellow human beings and thus in effect are metaphorically or otherwise erased from the consciousness of those too afraid to do what is right and proper.

In other words the state is carrying out a form of eugenics and all of us so discriminated against should refuse to pay our taxes as we are not getting our fair representation.

Other references:

  • Anderson, Douglas, M; Keith, Jeff; Novak, Patricia, D; Elliot, Michelle, A. 2002. (Sixth Edition). Mosby’s Medical, Nursing, & Allied Health Dictionary. St. Louis, Missouri, USA and London, UK.
  • Black, Henry Campbell (1979, 5th edition), Black’s Law Dictionary 
  • Dreger, Alice (1998) Hermaphrodites and the Medical Invention of Sex Boston: Harvard University Press.
  • Fausto-Sterling, Anne (2001) Sexing the Body, New York: Basic Books.
  • Gasche, Rodolphe. (1995) Inventions of Difference – On Jaques Derrida. Harvard University Press.
  • Reist, Melinda Tankard. 2006. Defiant Birth – Women who resist medical eugenics. Spinifex Pty. Ltd. Melbourne, Australia.
  • Somers xxy, C. cited in: Parkinson, P and Behrens J. (2004). Australian Family Law – in Context: Commentary and Materials 3rd ed. Thomson Legal and Regulatory Publication.
  • Weil, Karri. (1992) Androgyny and the Denial of Difference: University Press of Virginia; Charlottesville and London.

© Copyright Chris Somers xxy, Vice-Chair of Organisation Intersex International Australia Limited, 2011.

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One Comment

Karin

A Sydney physician writes about intersex Australians and marriage:

smh.com.auPoliticians should heed grey areas of gender, by physician Michael Cooper, http://www.smh.com.au/opinion/politics/politicians-should-heed-grey-areas-of-gender-20110922-1kn2e.html

Julia Gillard has repeatedly insisted marriage should be between “man and woman”. Her position on same-sex marriage may seem clear, but only if it is possible to define man and woman. …

Defining “man” and “woman” is not easy and encompasses a large continuum between the two end points. Unfortunately, society’s prejudices to assign a black or white result to what in nature may be a very grey area has resulted in significant discomfort and distress for many people. …

How should we define the gender of such people? Australians appear increasingly relaxed about sexual orientation, but the idea remains that you must be male or female. The International Olympic Committee has decided it is unable to make that definition. By contrast, Australia attempts to do so.

The Family Court recognises a post-operative transsexual female-to-male person as a man for the purposes of the Marriage Act. He is able to enter into a valid marriage with a woman. But others live in limbo.

Politicians should be aware of these conditions – rare as they are – before passing legislation on issues relating to sex, gender and relationships.

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