WHAT DOES HUMAN RIGHTS LAW HAVE TO SAY?
Any man or woman of full age has a right to marry. The right has been interpreted to apply only to marriages between men and women, rather than between people of the same sex.
Everyone has a right to social security and is entitled to realise their economic, social and cultural rights. This is significant because in some countries, same sex couples are not recognised and cannot gain access to certain social security benefits that are available to heterosexual couples.
Everyone is equal before the law and everyone is equally protected by the law. Discrimination based on ‘sexual orientation’ or ‘gender identity’ is not mentioned specifically but the right has been interpreted to prohibit such discrimination.
The above rights are also found in regional human rights treaties.
International and regional human rights cases
Discrimination based on sexual orientation is prohibited under international human rights law. For example, see Toonen v Australia (1994) and Young v Australia (2003). So far, however, international and regional human rights bodies have not recognised a specific human right to marriage equality. See the UN Human Rights Committee case of Joslin v New Zealand (2002) and the European Court of Human Rights case of Schalk and Kopf v Austria (2010). Family Law Week and ECHR Blog have both summarised the latter case.
In the United Nations Human Rights Committee – Views adopted by the Committee under article 5(4) of the Optional Protocol (CCPR/C/119/D/2216/2012) the UN Human Rights Committee held that Australia violated the International Covenant on Civil and Political Rights by failing to provide access to divorce proceedings for same-sex couples married overseas.
National laws and cases
This Act defines marriage in Australia as ‘the union of a man and a woman’, so it does not recognise marriage equality.
This Act legalised same sex marriage in the ACT. Only one week after it came into force, the High Court found that it was inconsistent with the federal marriage law, and thus constitutionally invalid.
The Charter is silent on marriage, social security and living standards. It however does include ‘sex’ and ‘sexual orientation’ as prohibited grounds for discrimination (Article 8).
England and Wales
This Act legalised same sex marriage in the United Kingdom.
This Act legalised same sex marriage in Canada.
The Supreme Court of Canada found that the marriage of same sex couples was constitutional and that the federal government had the power to change the definition of ‘marriage’.
The South African Constitutional Court held that Article 16 of the Universal Declaration of Human Rights had evolved such that marriage equality was now a human right.
United States of America - California
The United States Supreme Court ruled by a 5 - 4 vote that the Constitution guarantees a right to same-sex marriage.
The United States Supreme Court decided that Proposition 8, which outlawed same sex marriage since 2008, was unconstitutional. This also meant that same sex marriage is, and continues to be, legal in California.
Legislation which amended AB 607 (1977), and the California Family Code (1992) to be more gender neutral. It also removes reference to marriage being described as a union ‘between a man and a woman’. The legislation will enter into force on January 1 2015.
Trans Marriage Equality
Domestic laws for the recognition of marriages where one or more partners is trans vary widely. The legal gender identity of a trans individual may, depending on national marriage laws, determine if they are able to marry their partner.
- Trans people who have legally changed the sex on their birth certificate to reflect their lived gender:
- Will most likely be able to marry a partner of the opposite sex.
- May or may not be able to marry a partner of the same sex depending on local laws.
- Trans people whose birth certificate sex is different to their lived gender:
- Will most likely be able to marry a partner of the opposite sex to the sex on their birth certificate. However this means that the trans person may have to legally marry as their non-lived gender. For example a trans-man and a non-trans man may marry as a heterosexual couple if the trans-man’s birth certificate lists his sex as female.
- May or may not be able to marry a partner of the same sex as the sex on their birth certificate depending on local laws. This also may require that trans person will have to marry as a gender that they do not live their life as. For example a trans-man and a non-trans woman may marry as a same-sex couple if local laws allow if the trans-man’s birth certificate lists his sex as female.
The ability of a trans-individual to legally change their gender varies and may (but not always) require the individual to have sex-reassignment surgery, a procedure that not all trans individuals wish to undertake.
For couples who are married when one partner transitions, the law may be different again. A couple who were formerly in a heterosexual marriage may have their marriage invalidated if one partner transitions during the marriage. After transition and changing their sex on their birth certificate they will be in a same-sex marriage which may not be legally recognised.
The law in some Australian states, including Victoria and NSW, requires that people who apply to change their gender must divorce if married. This means transgender people who are originally in a heterosexual marriage face having to divorce their spouse before they can be granted legal recognition of their new gender.
Re Kevin - validity of marriage of transsexual ( FamCA 1074)
Kevin was a transgender man who had undergone both hormonal and surgical treatment. At the time of his marriage to Jennifer he had also changed his gender on his birth certificate and was living as a male. The Australian Government advised Kevin that his marriage to Jennifer was not valid.
In the proceedings brought by the couple to have their marriage declared legally valid the court determined that Kevin was legally a man at the time of the marriage. Justice Chisholm found that in determining a person’s sex for the purpose of marriage a range of factors needed to be considered relating to the identity of the person at the time of their marriage including brain sex and the person’s cultural characteristics, such as the sex they chose to live their life as.
Before the decision in Re Kevin Australian courts had decided on whether an individual was a man or a woman on a purely biological test.
The Full court did leave open the question of whether a person who had not yet, or chose not to, undertake surgical reassignment would be considered to be of their chosen gender for the purpose of marriage.
Intersex Marriage Equality
The ability of intersex people to marry can vary depending on local laws and their individual circumstances
- Intersex people who have a sex of either male or female recorded on their birth certificate, will most likely be able to marry a partner of the opposite sex.
- Intersex people who have a sex of either male or female recorded in their birth certificate, may or may not be able to marry a partner of the same sex depending on local laws.
- Intersex people who have a sex other than exclusively male or female (they may have a X or similar on their birth certificate) may not be eligible to marry under laws which require the parties to the marriage to be either male or female.
C and D (falsely known as C) (1979) FLC 90-626
A marriage was nullified by the court as the husband presented as male but had female chromosomes and both male/female anatomical characteristics. The reasons for nullifying the marriage included that a marriage was between one man and one woman, and that therefore a marriage could not of taken place within that definition.
Updated as of 7 February 2015