In all the excitement within segments of the community over the passage of the ACT’s Marriage Equality (Same Sex) Act 2013 (ACT) there has been little critical consideration of the implications of the final changes made to the Bill that were introduced purportedly in order to further protect the laws against a High Court challenge by the Commonwealth government. The implications of those changes will be brought into view when the High Court decides whether to grant leave to appeal Norrie’s case (reported about here) on 8 November 2013.
In the days leading up to the passage of the ACT laws through the ACT Legislative Assembly on 22 October 2013, the Human Rights Law Centre released advice authored by a team of highly regarded barristers about the legality and constitutionality of subnational same sex marriage laws. News reports indicated that this advice, or potentially other legal advice, prompted the ACT government to modify its Bill for marriage equality. The purpose of the change, it appears, was to clearly differentiate the form of marriage it sought to create and regulate from the form of marriage provided for under the Commonwealth’s Marriage Act 1961 (Cth).
The central change to the Bill was to limit ACT marriages to two people of the same sex. In the original Bill the proposal was to allow two people to marry who would otherwise not be able to do so under Commonwealth laws. Indeed, the original Bill did not refer to same sex couples at all. The original Bill would have allowed people who did not identify as either a man or a woman to marry.
In Norrie v NSW Registrar of Births, Deaths and Marriages  NSWCA 145 (Norrie’s case) the NSW Court of Appeal held that no longer should the plaintiff, who does not identify as a woman or a man, be trapped within the female-male binary of sex (that is that there only exists men and women and every person falls into one camp). The court held that it was possible in the particular circumstances that some people do not have a sex as it is conventionally understood. In Norrie’s case this meant that Norrie could have a ‘Non Specific’ sex in government issued documents (in birth certificates, for example).
The NSW government is attempting to appeal this decision to the High Court. It might be doing so to seek clarity for its own possible same sex marriage laws.
It could be that the effect of a broader application of the Norrie principles will be that people with no specified sex will be unable to marry unless they forgo their fight for recognition and identity – with the Commonwealth Marriage Act permitting marriage by a man and a woman and the ACT laws (and it is presumed any laws made by NSW and Tasmanian parliaments) allowing only people of the same sex to marry. They will not have marriage equality on their terms.
This will be the case despite claims to the contrary by same sex marriage campaigners. Rodney Croome argues that in the forthcoming new era of ‘marriage equality’ state and territory laws same sex couples will be allowed to marry at the subnational level, while everyone else will be able to marry under the provisions of the Marriage Act. Treating sex as a legal binary and not acknowledging the advancements of the law in deconstructing that binary in Norrie’s case, Croome notes that in Tasmania and the ACT (he does not refer to NSW) ‘all transgender and intersex people are legally male or female’.
In making these claims, and in arguing for same sex exclusive marriage, there is a threat that the marriage equality movement will splinter as it did in the United States, when the ‘mainstream’ marriage equality campaigners were criticised for advancing the cause of the most historically relatively advantaged and majority among them – those who are white and gay – while overlooking the interests of others.