Gay marriage in Australia? Whoah, not so fast

I was at a wedding several years ago when the celebrant made a comment that pricked up my ears. She said, “in Australia, marriage is between a man and a woman.” I initially thought, Way to state the obvious, thank you for making the queer people here feel even more uncomfortable, but, after talking to the bride, discovered that it was actually a legally required part of the ceremony.

Although it’s rarely noted, like the United States, Australia in 2004 passed a Federal Defence of Marriage Act (DOMA) that restrict marriage to heterosexual couples. Rhis appears to unequivocally thwart the chance of same-sex couples getting married—and Prime Minister Kevin Rudd has been reluctant to even implement a separate-but-equal civil unions system as in the UK.

Recently, a story circulated in the Australian media that after July 1st, the Australian government will recognise some same-sex marriages—but only those in which one person is transsexual. The idea was that with the passing of the Same Sex Relationships (Equal Treatment in Commonwealth Law) act, previously legal marriages would continue to be legal. In contrast to the US. where this situation already exists, this is actually a novel approach in Australian law for same-sex partnered trans people (for instance, a couple with a male-to-female partner and a female partner).

In a letter to Kerry Noble, founder of Queensland trans rights group Changelings, Peter Arnaudo from the Attorney General’s office, specifically addressed the status of transsexual marriages, saying:

“While the reforms do not expressly address the sex or gender diversity of specific individuals, they ensure that … a transgender individual who remains married after surgery will not be deemed to be no longer married, as a result of the reforms.”

That sounds good, right? Trans people can get married before transitioning, then hold onto their marriages afterward. For a community that doesn’t have a whole lot of rights, this is great, right?

But hold the phone. The aforementioned new law, my friends, is a Federal law, and does not apply to State legislation. In order to change the sex marker on their birth certificates in their State of birth, transsexuals are required to be single, or to annul their existing marriages in order to access the sex-appropriate documents. The marriage annulment requirement was an attempt to prevent the creation of same-sex marriages, much as the requirement of mandatory sterilization for those same documents is a continued attempt to prevent transsexual parents.

So even though the Federal government has now decided that it will recognize these same-sex marriages as legal, the States will still currently not allow a trans person to change their documents in order to get to that point. So, despite an isolated case or two, this hardly presages a flood of same-sex marriages in the country. This is, I’m afraid to say, a fairly common occurrence for transsexual and transgendered people, whose legal status is frankly incoherent in Australia.

Last week, however, a ray of light has opened up with the Australian Human Right Commission handing down the conclusion to its Sex Files report. Its very first recommendation was that “marital status should not be a relevant consideration as to whether or not a person can request a change in legal sex.” Given that is appalling to ask people to choose between their marriages and having the right documents-which is a matter of safety for transsexual and transgendered people—one can only hope that this call will be heard.

It remains to be seen whether any State governments will take up the commission’s recommendations, but for now, despite news to the contrary, this fight is far from won.