Leave No-One Behind: Intersex Marriage


Michael Kirby pic Eva Rinaldi

Michael Kirby recently wrote a good op-ed in the Australian arguing against the marriage equality plebiscite. However, he omitted all mention of intersex people. And the issue of marriage equality is just as critical for them as the rest of us.

“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 have no clearly defined sexual features at all.” Chris Somers: Organisation Intersex International

And that’s a problem if you want to get married. Only those legally defined as ‘a man’ or ‘a woman’ can get married.

1.7% of the population are intersex. That’s more than most people realise. But unlike LGBT, they were excluded from marriage even before the Marriage Act was amended. That amendment took the common law definition of marriage and incorporated it into the act.

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

As intersex persons do not fit the definition of ‘male’ or ‘female’, they were already specifically excluded permanently from marriage. Worse, any existing marriage they may have entered into could be – and in at least one case, was –  declared null and void.

Gina Wilson tells me:

“So long as an Intersex person has “Male” or “Female ” on their birth certificate they can marry someone who has the opposite appellation. The issue hinges on a Queensland court case in the eighties where a marriage was annulled because the “male” in the marriage was Intersex and found to not really be a male by the judge.”

The story of the case is here https://oii.org.au/21183/intersex-people-and-marriage-analysis/

“The husband had lived in the male role prior to his marriage to his wife. He had Male on his birth certificate consistent with his application for a marriage licence and the law at the time, as now, prohibiting same sex marriage. Post-diagnosis, he was surgically altered to confirm his male sex assignment. Despite all these factors, Bell J. found:

I am satisfied on the evidence that the husband was neither man nor woman but was a combination of both, and a marriage in the true sense of the word as within the definition referred to above could not have taken place and does not exist. In those circumstances —

It is ordered:

  1. That the Application for Declaration of Validity of Marriage is dismissed.
    2. That a Decree of Nullity is pronounced

This establishes in law that intersex marriages are unlawful in respect of the Marriage Act and are open to being nullified should one party to the marriage seek that. Annulment is a declaration that the marriage does not in fact exist.”

There is some disagreement over whether a subsequent case regarding the marriage of an F to M transsexual, Kevin, overrides the above, but this has not been tested in court so far as I can discover. It seems to me that it stands: an intersex person may not marry, and any marriage they enter into may be voided. Intersex advocates tell me the effect of Howard’s amendment to the Marriage Act was to deliberately cement that situation into law.

Former Democrat Senator Brian Greig raised intersex marriage in parliament as far back as 2002. http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22chamber%2Fhansards%2F2002-08-19%2F0125%22

“Just last week on 10 August, the West Australian reported the dilemma faced by Chris Somers, an intersex person who has been raised as a man and who wishes to marry his girlfriend and have that marriage legally recognised. Doctors have certified that Chris Somers is a 47XXY intersex person who has physiological and psychological characteristics associated with both genders. The failure of the legislature to bring our laws up to date with contemporary society and medical knowledge is having real effects on real people in our society. It should not be left to the courts to lead that change. Yet, sadly, a spokesperson for the Attorney said recently that `change was not on the radar screen’ and that `there was no reason to contemplate change with respect to intersex people’. The result is a cruel and irrational situation.”

Chris Somers wrote about this issue at length here https://oii.org.au/15129/oped-no-taxation-without-representation-equal-marriage-rights-intersex-australians/ The site is a great source of information, if you wish to learn more.

Tony Briffa, who married her partner Manja in New Zealand, where this is not an issue, says:

“The Marriage Act is very troublesome for intersex people since Howard changed the definition of marriage to be between a man and a woman. I imagine he meant “legally recognised man” and “legally recognised woman”, which is why intersex people in Australia cannot get a birth certificate that recognises them to be anything other than male or female. That said, who knows what a court would make of it if it was tested?

“If I had a birth certificate that said I was male, and married Manja who has a birth certificate that says she’s female, we’d be able to marry legally in Australia. However, I would always be worried my marriage would be invalidated at some point because I am not biologically male nor could I be. I would also worry that when I die someone would contest my will and claim my marriage wasn’t valid due to my sex.”

The Human Rights Commission pointed out in 2011 that merely to allow same-sex marriage would not fix the problem for intersex. http://www.hreoc.gov.au/human_rights/lgbti/lgbticonsult/report/section12.html 

Section 12 – Other actions that could be taken by the Australian Government to protect LGBTI people in Australia – Addressing sexual orientation and sex and/or gender identity discrimination: Consultation Report (2011)

Organisation Intersex International argued that marriage equality would remove discrimination against intersex people who are currently forced to be legally a man or a woman in order to marry:

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”

Intersex, so often overlooked in the LGBTIQ movement, must not be overlooked when it comes to equal marriage.

About the author

Veteran gay writer and speaker, Doug was one of the founders of the UKs pioneering GLBTI newspaper Gay News (1972) , and of the second, Gay Week, and is a former Features Editor of Him International. He presented news and current affairs on JOY 94.9 FM Melbourne for more than ten years. "Doug is revered, feared and reviled in equal quantities, at times dividing people with his journalistic wrath. Yet there is no doubt this grandpa-esque bear keeps everyone abreast of anything and everything LGBT across the globe." (Daniel Witthaus, "Beyond Priscilla", Clouds of Magellan, Melbourne, 2014)