The Australian Capital Territory assembly passed a same-sex marriage bill on October 22. The Marriage Equality (Same-Sex) Bill 2013 allows same-sex marriages of ACT residents and non-residents, and is a huge step forward for marriage equality.
The ACT is the first Australian jurisdiction to legalise same-sex marriage, after a mammoth fight against a federal same-sex marriage ban.
The Labor ACT government passed the bill with the support of Greens MLA Shane Rattenbury while the Liberal Party opposed it. The bill passed narrowly, nine votes to eight.
The ACT government says it will defend the bill against a challenge in the High Court by the federal government, which does not recognise same-sex marriage.
The ABC reported that more than 100 people packed the public gallery on the day the bill was passed as well as and a nearby room where the debate was being screened.
The result was overwhelmingly celebrated. More than 1000 couples have indicated they want to get married under the new laws. But the bill has attracted criticism from transgender, and sex and gender diverse communities, the most marginalised of the rainbow community.
This is because the bill was amended from "all marriages between two adults that are not marriages within the meaning of the Marriage Act 1961”, to “marriage between two adults of the same sex".
The bill was amended at the last minute, with support from the Greens and the ALP, after constitutional experts advised the formulation would bolster its chances of surviving a High Court challenge from the Tony Abbott government.
There is debate, and some confusion, as to whether the amended bill includes transgender couples who do not or cannot be identified as male or female.
TRANSGENDER RIGHTS IN AUSTRALIA
By law in half of Australian states and territories, transgender people need to have surgery to be legally defined as the opposite sex of their choice.
Only Tasmania, Western Australia, the ACT and South Australia recognise transgender people to be the gender of their choice without undergoing expensive surgery. All other states prescribe surgery to be recognised as the sex a transgender person is.
Given the ACT bill allows same-sex couples to marry who are not ACT residents, transgendered people who have not been recognised as the sex they are, due to backward state laws, and want to get married in the ACT, may not have the same-sex wedding they desire. Intersex people, who are not recognised, or do not want to be recognised, as male or female will not be able to be married. Gender/sex non-specific people, who are also not recognised, cannot be married in the ACT.
The ACT Greens said in a statement: “Transgender and intersex people will have legal status to marry under either the Federal Marriage Act or the Marriage Equality Act provided they are categorised under existing legislation as either male or female.
“However, while they will be legally able to marry, it is not an ideal situation as the definition in legislation may not be consistent with the person’s gender identity. The only situation where a person couldn’t be legally married is if they are not legally recognised as being either male or female.”
The ACT LGBTIQ Advisory Council chairperson, Heidi Yates, said: "The marriage bill is a crucial step towards ensuring that all couples, regardless of gender, can declare their life-long commitment to one another in front of family and friends.
"[However], the Council remains disappointed that the Bill was amended at late notice to limit recognition to couples of the same legal gender, rather than all persons who cannot marry under the federal Marriage Act."
Trans activist Jayne McFadyen told Green Left Weekly the amended bill excludes the trans community. "One case where a transsexual person is unable to get married under the ACT or the federal legislation is where there a person is unable to be legally recognised in their reassigned gender.
“So if a male to female transsexual person who cannot get legal recognition wants to marry a male partner they cannot use the federal legislation because the law does not allow what it sees as two men getting married, and to use the ACT legislation the male to female person [will] have to declare themselves as male to get married. That would be like asking a lesbian couple to declare which one is male or asking a gay couple which one is the female before allowing them to marry."
INTERSEX COMMUNITY SPEAKS
Tony Briffa from Organisation Intersex International Australia said: “This clearly is not ‘marriage equality’ which is why I am calling on Australian Marriage Equality to either support amended Bills that are inclusive of all GLBTI people or change their organisation’s name.
“My wife and I were married in New Zealand three weeks ago where true marriage equality exists. My sex did not matter for the purpose of marriage because in New Zealand marriage is about a commitment made by two people irrespective of sex. As an intersex person who is open about being born biologically both male and female, this is very important.
“The current marriage laws in Australia only allow marriage to be between a man and a woman to the exclusion of all others. This means people like me are unable to marry anyone unless we deny our true biological selves and pretend to be one sex and in a heterosexual relationship.”
For people who hold non-sex/gender specific status, it is more restricting because they are not legally recognised in any state. Norrie mAy-welby is the only person who has been recognised as sex non-specific, but faces a battle to keep it with the NSW state government in the High Court.
Norrie mAy-welby said of the bill passing: “I am excited about this bill. I see it as a major step forward for social justice. It will have a real impact on families, with kids. I think we have to cheer. Later down the track when we win sex/gender non-specific rights, we can ensure equality is extended to those who have not been included yet in marriage bills.”
The ACT Greens also said: "A recent ACT Law Reform ‘Beyond Binary’ recommends legislation that will advance trans and gender non-specific rights in the ACT. We are hoping to have bills passed based on recommendations as soon as this year, or early next year.”
Yates said: “The [LGBTIQ Advisory[ Council will be calling on the government to fulfill its promise to expand the scope of the legislation, if upheld in the High Court …
"In the meantime, we look forward to celebrating the introduction of the bill with the broader community, and await the introduction of key changes to the Birth Deaths and Marriages Act later this year to improve the way the ACT recognises transgender and intersex persons."
Community Action Against Homophobia co-convener Karl Hand, speaking in a personal capacity, said: "We have wrung something out of the government. We now have another arrow in our sheath. This is not winning our end goal, but it is a useful platform. Something we can use in the fight for full marriage equality. We just took a step from a weak position, to a stronger one. As soon as our champagne glasses are empty, we will fight to defend the bill and demand rights for trans, intersex, their inclusion, and full federal marriage rights."
[National protests to defend the bill and campaign for full federal marriage equality are taking place on November 23 at 1pm at Sydney Town Hall; Melbourne State Library, Brisbane Queens Park, Perth Sterling Gardens.]