On the NSW same sex marriage report

We’ve had some time to reflect on the NSW Parliamentary Social Issues Committee report on same sex marriage. It contains mixed news for intersex people.

The nub of the issue for us can be seen in the two consecutive paragraphs in the NSW inquiry report on page 80.

One the one hand, the Committee recognise the biological basis of intersex, using a biological definition that is part of the 2013 Australian government guidelines on the recognition of sex and gender, point 7.26:

An intersex person may have the biological attributes of both sexes or lack some of the biological attributes considered necessary to be defined as one or the other sex. Intersex is always congenital and can originate from genetic, chromosomal or hormonal variations. Environmental influences such as endocrine disruptors can also play a role in some intersex differences.

(Federal guidelines enable intersex people to identify our gender as male, female or X; some Victorian-born intersex people have no sex markers on their birth certificates).

But in the following paragraph they expect a “conclusively determined” binary sex:

7.27 Intersex people can marry pursuant to the Marriage Act provided that their sex can be conclusively determined to ensure that the marriage is between a man and a woman.354 This means that if a person’s biological sex cannot be determined, they will not be able to marry under the Marriage Act.

Even when an intersex person enters into a marriage with full disclosure, doubt remains because of the nature of intersex variations. In cases of (for example) relationship breakdown, the biological nature of intersex can be questioned. Trans people have the benefit of Re Kevin in this regard; intersex people may well not. There’s no recent case law, but “In the case of C and D” results from precisely this situation.

No attempt is offered in the bill as it is now drafted to include people who have “indeterminate” sex. A statement about this in the report refers to advice from Professor Twomey, on page 81 (point 7.30):

My first point of concern is the long title of the Bill. It is described as ‘A Bill for an Act to provide for marriage equality by allowing for same-sex marriage between two adults regardless of their sex.’ While I understand that the purpose is to incorporate persons of indeterminate sex, the difficulty is that it may give rise to an inconsistency with the Commonwealth’s Marriage Act as it would appear to contemplate the marriage of a man and a woman (because it includes two adults regardless of their sex).

The draft bill no longer contains a note that “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.”

The committee did not appear to seek to redraft the bill to address this issue, except by removing the intention to include persons of “indeterminate” sex. We’re disappointed by the lack of examination of other means of addressing this issue. Is there still time and scope to address this? We’re not sure.

To us, therefore, this is a “same sex marriage bill”, not a “marriage equality bill”. Arguably the proposals for “same sex marriage” are different from civil unions only in name and ceremony. Lack of recognition outside the State will result in significant potential disadvantage.

Intersex is not trans, just like trans is not gay. Even so, the statement made in an exclusive Fairfax news report over the weekend by State Politics Editor Kirsty Needham saying, “Trans-sex marriages are not allowed” leaves us feeling perplexed. It’s not at all clear what Fairfax mean by this.

If the LGB communities wish to proceed with this then that’s their prerogative. Seen as an incremental step towards marriage equality, and extra pressure on the more obdurate federal politicians, State action could be a good thing. However, failure to act on still pervasive issues regarding relationship recognition but also the health and equality of treatment for intersex and trans communities is not good for broader community alliance-building.

For the intersex community, we particularly lack support and funding to address health policy and community support issues, and broader community education.

On related issues, we’re pleased to see reference in the Report to the federal sex and gender recognition guidelines. These guidelines were the outcome of public and cross-community consultation and we’d welcome much greater recognition and implementation of this by the State. Health issues are, however, our State priority.

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.