ON the Sixth Day of Intersex we draw your attention to intersex and marriage – intersex people and the right to marry.

What is intersex?

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 we may have no clearly defined sexual features at all.

Why are intersex people interested in the marriage debate?

At first blush it may not be immediately apparent why intersex people and an intersex organization would have a stake in the current debate on “same-sex marriage” or “gay marriage” as it is often put in the press.

Intersex people support same-sex marriage as a matter of solidarity with LGBTIQ, and a matter of equal rights for all and because some intersex are thought of as being same-sex attracted.

Same-sex marriage however is not the main issue for intersex in the marriage debate. Marriage equality is the issue.

Intersex Australians remain in the lurch

When the Marriage Act 1961 was changed so that the definition was that a marriage is now “a union between a man and a woman” not only were intersex Australians left in the lurch, we were left in confusion. The terms “man” and “woman” generally refer to gender, that is, social sex roles rather than anatomical sex itself. The terms used to describe actual physical sex are “male” and “female”.

To qualify for marriage under the Marriage Act one has to produce a birth certificate. Birth certificates designate “sex” and not “gender” as do cardinal identity documents and most other documentation. Even your Facebook and telephone accounts have sex markers and not gender markers.

Conflating gender with sex

So we understood that the reference to man and woman in the Marriage Act 1961 was really intended to mean male and female and that the terminology used was in keeping with the federal governments’ constant confusion of sex and gender.

If the Act does mean to refer to sex, then we might successfully apply to be married using the sex designator on our birth certificates just so long as the person of our choice had the other possible designation. That is, the so-called “opposite” sex designator.

How something that is 99.9 % identical to something else can be an opposite escapes me. Male and female are not somehow “opposite” but in fact are biological variations with about a 0.01% difference between them.

We are not home free yet

Even in that circumstance how would we fare if our sex were challenged in a court of law?

In the United Kingdom April Ashley was famously challenged in her divorce from her husband in the matter of Corbett vs. Corbett. Ashley had her birth certificate changed after undergoing “gender” reassignment surgery. Happily provided with that amended document, Ashley then married and remained so for some years.

When the relationship collapsed Mr Corbett decided to test the “true sex” of his erstwhile partner. The court found that Ashley’s sex, irrespective of anatomical changes, was somehow essentially immutable and therefore the marriage had never really existed, as same sex marriages were illegal.

Cases such as the Family Court of Australia’s finding in the matter of Re: Kevin have allowed that if a person has “gender reassignment surgery” then they may marry in accordance with the sex designator on their amended birth certificate.

For both Kevin and Ashley the matter of their right to marry and their rights in marriage would never have arisen if “same-sex” marriage were allowed. That situation then, in essence, does nothing to challenge social insistences on the sex binary construct as all the players were male or female, men or women. The idea that only males and females exist can be maintained just so long as the only possible assignment is male or female and the only possible transition is from male to female or vice versa.

The issue of a person who is born as neither male nor female and is in a marriage whether same-sex or heterosexual has not been ventilated in a court of law.

How would we fare if it were?

So long as the Marriage Act stipulates any sex or gender then intersex Australians are on shaky ground.

Would a judge decide that under the terms of the Act an intersex person could never be legally married?

Would they decide on the basis of an essentialist view of our anatomical parts we were not really the sex we claim to be or that our documents say we are?

Would our rights to superannuation, our retirement age, our rights under myriad insurances and Medicare provisions be less than we imagined or even non-existent?

Intersex people already have great difficulty obtaining services such as medical services when those services are thought to conflict with our assigned sex. What refuge do intersex people qualify for in the event of domestic violence for instance?

All we need is one angry ex-partner or a reluctant insurer or superannuation fund to drag us off to court to challenge our right to our benefits on the basis that we are not really male or female. The argument that we have anatomical differences that vary from what is considered male or female is absolutely true. That the law makes no provision for the widespread existence – some 4% or more of the population – of people born with these biological variations is also true.

To argue intersex into the sex binary?

So that intersex people might never have to fight a battle where we have to argue ourselves into the sex binary of male or female, full marriage equality is the only solution. To achieve that, all references to sex or gender should be removed from the Marriage Act.

Most intersex people find themselves living in financially constrained circumstances if those around them know their differences. Social opprobrium means we are often employed well below our capacity and renumerated less favourably than those in identical employment. There is no provision in anti-discrimination law to prevent this.

Any legal challenge to an intersex person’s right to marry or be provided with services would, in most cases, financially ruin the individual in question just as it financially ruined April Ashley when her transition from male to female was challenged.

Same-sex marriage is not the answer for intersex

Intersex rights to marriage will not be clarified by legislation that might make same-sex marriage legal. Rather we will remain in a rights-free limbo where we will not know the real legitimacy of our union until it has been tested, at enormous expense, in a court of law.

If changes to the Marriage Act are consciously made to achieve marriage equality for all then I as an intersex person will have the certain knowledge that my marriage is as sound, as legitimate as the next person’s. I will have, in this one area of law, full equality despite my intersex.

Gina Wilson
Chairperson, Organisation Intersex International Australia Limited (OII Australia)