Round Two

To:
Andrew Barr
Chief of Staff
John Hargreaves MLA
Minister for Disability, Housing and Community Services
Minister for Police and Emergency Services
Minister for Urban Services
ACT Legislative Assembly

From:
Ms Zoe Ellen Brain


Dear Mr Barr,

I wish to bring to your attention the following letter, dated 23 March
2006, reference 06/1072, MC06/1210

----
Dear Ms Brain
I refer to your e-mail correspondence to the Prime Minister, the Hon
John Howard MP, received on 10 January 2006 concerning the recognition
of marriages where one of the parties is a transsexual person. He has
referred your letter to me for reply as I have the portfolio
responsibility for the Marriage Act 1961.

Whether or not a marriage is valid is determined at the time the
marriage takes place. If the parties to a marriage are a man and a woman
at the date of the marriage them, if there are no other grounds for
invalidity, the marriage will be valid. Events that occur after the date
of the marriage cannot affect that validity, so if one of the parties to
the marriage changes their gender the validity of the marriage is not
affected. If the two parties wish to remain married they are able to do so.

As you have stated in your letter, the legislation in the States and
Territories which provides for a change in the birth registration for
appropriate individuals who have changed their gender can only be used
by people who are unmarried. Registration of births is a matter for the
States and Territories and it is not appropriate for me to comment on
their legislation. You may wish to raise your concerns with the ACT
Attorney-General, Mr Jon Stanhope MLA.

I hope this information is of assistance to you.

Yours Sincerely,
Phillip Ruddock
-----

To remind you of the relevant section of the ACT Births, Deaths and
Marriages Registration Act 1997 : A1997-112

24 Application to alter register to record change of sex
(1) A person may apply to the registrar-general for
alteration of the record of the person's sex in the registration of the
person's birth if-
(a) the person is at least 18 years old; and
(b) the person's birth is registered in the ACT; and
(c) the person has undergone sexual reassignment surgery; and
(d) the person is not married.


The relevant passages in the Hon Phillip Ruddock's letter are as follows:

"Whether or not a marriage is valid is determined at the time the
marriage takes place. If the parties to a marriage are a man and a woman
at the date of the marriage them, if there are no other grounds for
invalidity, the marriage will be valid. Events that occur after the date
of the marriage cannot affect that validity, so if one of the parties to
the marriage changes their gender the validity of the marriage is not
affected."

If I construe this letter correctly:

1. Under the Commonwealth Marriage Act 1967 the act or event of
contracting into a marriage can only be performed by a man and a woman
together. The situation of an existing valid marriage is unaffected by
any subsequent change of either partner's gender. Thus a "same sex" (act
of) marriage is invalid under commonwealth law, but a "same sex"
(condition of) marriage is valid, barring any other reason for invalidity.

2. Thus whether a state or territory recognises a change of gender or
not can have no effect on the validity of an existing marriage under the
Commonwealth Marriage Act 1967 (as amended). What a state or territory
legislature decides to do or do not do as regards gender recognition is
immaterial and a nullity as far as the Commonwealth Marriage Act 1967
(as amended) is concerned. It has been made unequivocally clear that
according to the Federal Attorney general, no gender change after the
date of marriage can affect such a valid marriage.

Hence as the result of this clear statement by the Federal Attorney
General, the ACT Births, Deaths and Marriages Registration Act 1997 Part
4, Section 24, 1 (d) is not required for consistency with the Federal
Marriage Act 1967 as amended.

Furthermore, the aforementioned Section 24,1,(d) appears to be
inconsistent with the over-riding Commonwealth Sex Discrimination Act
1984, Section 6 (1).(a) and (2)

Section 6
Discrimination on the ground of marital status

(1)
For the purposes of this Act, a person (in this subsection referred to
as the discriminator) discriminates against another person (in this
subsection referred to as the aggrieved person) on the ground of the
marital status of the aggrieved person if, by reason of:

(a) the marital status of the aggrieved person; or
(b) a characteristic that appertains generally to persons of the marital
status of the aggrieved person; or
(c) a characteristic that is generally imputed to persons of the marital
status of the aggrieved person;

the discriminator treats the aggrieved person less favourably than, in
circumstances that are the same or are not materially different, the
discriminator treats or would treat a person of a different marital status.
(2)
For the purposes of this Act, a person (the discriminator) discriminates
against another person (the aggrieved person) on the ground of the
marital status of the aggrieved person if the discriminator imposes, or
proposes to impose, a condition, requirement or practice that has, or is
likely to have, the effect of disadvantaging persons of the same marital
status as the aggrieved person.


In view of this clarifying letter, and the inconsistency, I urge that as
a matter of urgency, ACT Births, Deaths and Marriages Registration Act
1997 Part 4, Section 24, 1 (d) be repealed in its entirety.

...

Yours Sincerely,
Zoe Ellen Brain BSc MInfoTech(Distinction)