Same-sex marriage: Equality or not?

This post is the result of an interesting response from a member of “Proud to be a second-class citizen” to Marriage equality in Tasmania: the legal and constitutional issues.  She pointed out that the current Bill before Tasmanian Parliament is a Same-sex marriage bill and not a Marriage Equality bill.  I was surprised. I stopped, went and downloaded the bill in question, and it indeed states, instead of the “Regardless of their sex” in the Federal Marriage Equality Bill, that it permits marriage between two people of the same sex.

I had it suggested to me that I should go and research the legislative complexity around including intersex marriage equality in the bill.  I am not a lawyer.  Let me repeat, I am not a lawyer; the reading I do and the research I do is filtered through my limited understanding of the law.  In essence, whatever I come up with here, I might be wrong.  And if I am, I want you to tell me so (and why)!

I’ve had some basic leads, suggestions that Tasmania recognises two sexes and does not recognise any individual as being of unknown sex.  But nothing I can find in a search of the Tasmanian legislation for the term “sex” explicitly states such.  The closest I can get is that a registration of Change of Sex requires the Registry to be changed to note that the person is of “the other sex” and that a notation be put on their certificate to state that they were “previously registered as of the other sex.” (easiest to read here).

The suggestions that I have seen have hinged on including the term “of unknown sex” or “of indeterminate sex” in the definition. e.g. “two people of the same sex, or where one or both of them are of unknown sex”.  I wonder, in a legislative environment where “the other sex” has clear meaning, whether it is possible for a person to be “of unknown sex” or “of indeterminate sex”.  I have a sneaking suspicion that this might be the cause of the bill’s frustrating so-close-yet-so-far situation.  It’s great for the G, the L, and the B (Provided they’re either M or F); but for the T and the I… it doesn’t help.

If Commonwealth law and State law agreed on the definitions of sex here, it would be easier.  In a world where all people are either M or F, we would then have a marriage act to cover all situations, and in a world where all levels of government accepted indeterminate sex, the state could legislate to cover that too. But we have seen (In the case of C and D, among others) that Commonwealth law does not see intersex people as male or female, and as such statements to the effect of “of the same sex” or “of opposite sexes” do not apply to them.  Rather they are left in a difficult situation while the federal government refuses to legislate, and the state has to tread carefully around the federal law to ensure there are no incongruities that might cause the state law to be struck down by the High Court.  

It is because of this tiptoeing that they cannot simply say something to the effect of “two people, regardless of their gender” like the federal bill does.

The result of my inquiry? I think same-sex marriage is a move in the right direction.  It’s a step closer to marriage equality. But to say that the Tasmanian bill provides marriage equality in Tasmania is not only fallacious, it is dangerous.  That implies that the work in Tasmania is done when this bill passes, where clearly this is not the case.

My personal, heartfelt, passionate response to this is to turn to our Federal government and say “Come on! Just make it law already and save everyone time, money, and heartache!”

What this has really reminded me of is to look for the hidden discriminations.  The laws that look equal, but aren’t. The statutes that proclaim equality while enforcing discrimination and segregation.  To my Trans and Intersex readers, followers, friends, acquaintances, and fellow queer community members, I say: “I stand with you for Marriage Equality.  I apologise for making the presumption that if my needs were catered for, yours would be too.  Thank you for reminding me of the truth. I will try harder to be more perceptive in this area.”

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2 thoughts on “Same-sex marriage: Equality or not?

  1. Trans people should be OK because of the Re Kevin decisions. But otherwise, you’re correct.
    Tasmania also faces problems with people whose Birth Certificate says “X” – a possibility in some states. They have no basis for arbitrarily assigning someone a sex.

    • I suppose that under the Same-sex Marriage legislation two “X” certificate holders could marry each other as it could be reasonably argued that they are “of the same sex” based on their birth certificates… Not that I like that interpretation of events overmuch either. 😦

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