The Inconvenient Hypocrisy of Australia's Marriage Equality Bills

Last week a same-sex marriage bill failed by two votes to get through the NSW Upper House. It followed similar bills in Tasmania, which also failed, and the ACT, which succeeded. In some ways, it signals that finally politicians are catching up with what most Australians think. But they have to do it in a strange way, in that it specifically excludes intersex marriage. So should we support a move to end discrimination against one group, while creating it against another?

The state-based bills that are being introduced around the country try to get around the Federal Marriage Act, which explicitly states that marriage is a union between a man and a woman, by creating a new class of marriage, 'same-sex marriage', that would be governed by state laws. The Federal Government is launching a High Court challenge to the ACT law, spending a huge amount of our money to do so. If it fails, there will be federal laws for men and women, state laws for gays and lesbians, but nothing for anyone who is neither.

“It's apartheid,” says Gina Wilson, former President of the Organisation for Intersex International (OII) Australia. “I understand this is a strategy, it's one step closer for marriage equality activists. But any institution where one group of people is allowed to get married and another isn't just creates division. It's a separate arrangement for people who can't 'do' normal.”

The problem is largely to do with language. Intersex and transgender groups are working with marriage equality activists to try and find a way to be included in legislation for same-sex marriage, and legal advice is that while their inclusion shouldn't cause it to fail in a high court challenge, it's really hard to find the right words. If someone is not male or female, and not a third category, what are they? How can the law refer to the multitude of identities people can have that aren't male or female?

Wilson is uncomfortable with the way this is going, but says in the scheme of things, intersex marriage is way down the list of priorities. “When there are people all over the world being killed and bashed when they're identified as being LGBTI, when there are children in Australia and all over the world subjected to non-consensual surgery, this strikes me as a bit of a middle class concern.”

According to OII, in Australia there's huge pressure from doctors for parents to have newborn babies surgically altered so their bodies conform to mainstream ideas of "normal" —male or female. For most children, the only surgery doctors can perform is about preserving their life. But for intersex babies, surgery is performed for cosmetic reasons. It's genital mutilation that's been recognised as torture by the UN Special Rapporteur, and it's done at the will of parents and doctors, even to older children. “If you were talking about a transgender child, you need a court order to be allowed to perform surgery,” Wilson said. “But for intersex children, it's done routinely, and until they're 16 they have no say in it. We've got to stop doctors fiddling with children's bodies.”

It all comes down to the way we think. There's always a push to normalise binaries, says Wilson, whether through labelling, where it's impossible to have a gender identity that doesn't fit what we don't have words for, and it's therefore impossible to be recognised by the law in any meaningful way, or through surgery.

Recently the German parliament passed a law where children who aren't clearly male or female are marked as a separate category on their birth certificate. It was designed as a way for intersexuality to become formalised, or normalised. However, critics believe that given the attitudes of many parents, the thought of having a child that doesn't fit in is way too scary, and they'll rush even more quickly toward surgery. It also means that the children will be part of a new social experiment, a new class of people who can more easily be discriminated against because their difference will be apparent every time they go for a job interview, or travel overseas. Plus, it squashes everyone into a new category together – exactly the thing intersex people object to about being forced to identify as male or female.

The fact that intersex people are soon to be the only people who can't get married is discrimination, but it's really the tip of the iceberg.

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