Thursday, 29 May 2008

The Destruction of Marriage

A lot has been talked about same-sex marriages somehow devaluing, even destroying, the sanctity of marriage.

Marriage is a solemn vow between two parties. It is also recognised by the state as a contract, giving certain rights. Amongst them, the rights of inheritance on the demise of one partner, the right to pensions and superannuation entitlements. Now the marriage may be dissolved by divorce, or annulled as invalid from the start, but a valid marriage not dissolved by such means through the Family Court gives inalienable rights. Well, it does unless someone destroys the whole concept, making the whole thing meaningless, the license a mere scrap of paper.

From the latest edition of Polare (#75 not online yet), and a submission to the Australian Human Rights and Equal Opportunities commission:
To the Government, I am a married person of indeterminate status unless dead in which case I am not married and my estate may not be claimed by my wife.

To Medicare I am a woman.

To my wife's superannuation, I apparently am not a family member (particularly as it pertains to inheritance rights)

I am not married to my wife as I am a female, but I am not allowed a birth certificate as a woman because I am married.
My wife doesn't appear to have any rights as a married woman either - though she's done nothing wrong nor has she signed anything that may abbreviate or negate any rights as a married woman - this is an important point as it apparently discriminates against an innocent bystander.
And naturally she can't remarry while her marriage, a marriage now legally a shadow with no legal substance, remains undissolved. Here's another couple's testimony.
Neither of us is homophobic but we resent being classed and discriminated against by inclusion under the wrong label.

We are not Lesbians nor thought of as such in our local community that understands that my condition is both medical and mental and, after all other avenues have been exhausted, has resulted in me becoming a woman.

The Commonwealth and State Legislatures choose not to recognise our condition and strip us of all our human rights and equal opportunity before the law.

The Human Rights and Equal Opportunities Commission late last year identified over fifty pieces of State and Federal Legislation against "same sex" couples including transgender couples and transgender singles.

The following are just some that impact on Transgender married couples.

(1) By Medicare we are now determined to be a "Same Sex Couple" and lose our married status even though we are still married!

(2) (a) I cannot change the gender on my NSW Birth Certificate without divorcing my seventy-two year old wife of thirty-eight years.
(b) I cannot have an Australian Passport with the corrected gender on my new Passport unless I change the gender on my name-amended Birth Certificate.
(c) If I change my gender on my birth certificate then my wife loses her pension card as she is then classified as a "same sex" single person! As a married couple we are both entitled to a part-pension along with all the married pensioner discounts on utilities, travel on public transport etc
There is a general principle here: if Marriage incurs a responsibility, then the Marriage still exists. If Marriage gives any benefits, then it does not.

It would have been more honest to pass a law saying that such Marriages are dissolved by State Decree on the transition of one partner. But this is so repugnant to Australian mores, and our basic sense of justice, that it was unthinkable. Instead, a dishonest and despicable course of "white-anting", destroying the marriage by stealth, was adopted. While claiming to save marriage, they deliberately destroy it.

Well, they can do that to the legal part. They can destroy the contract, leaving only a hollow legal shell that is a mockery of marriage. But they can't destroy the love behind it.
The non-transgender wife/husband in the union is ignored and along with the transgendered person often suicides as a result of the treatment under legislation.
Thereby ceasing to trouble society, so it may be more of a desirable feature than a bug. I hope not, but having seen and experienced bureaucratic persecution first-hand, well, I honestly can't say that I can totally discount the possibility.

Now some of these persecutions may have been resolved. For example, the Passport situation may have been - or may not. You see, despite the
Abrams and Minister for Foreign Affairs and Trade [2007] AATA 1816 (28 September 2007)
case where the courts ordered in no uncertain terms that the Passport Office not engage in such persecution, well, they now send letters like this:
The Department will consider issuing a travel document in their reassigned gender in a limited number of compassionate circumstances, including where the applicant's circumstances prevent that person from obtaining an amended cardinal document (e.g. where the applicant is married).
But no promises - just "will consider". It's not as if it's our right or anything, or that they're legally obligated to. They might do, if we kowtow enough. Or might not.

In fact, in my own case, not only did they not grant a passport, they didn't grant it even though I had gotten my "cardinal document" changed, even though that meant contravening the provisions of the Administrative Appeals (Judicial Review) Act to do it. To break the law, in fact. And when finally, after 20 months, I received one, there was no written apology. "Compassion" when it comes to people like me is wholly absent there. They only obey the law when there is either the threat of, or actual legal action to compel them to do so.

Birth Certificates too are meaningless pieces of paper now. They prove nothing, as the Registrars are forced by State law in some cases to retain false information on them. That's been proven in court.

As for my own rights as a father to my boy, they are questionable. I think I'd be treated as any other father in any other marriage. My name's on my son's birth certificate as his father. But that could easily be rendered moot by act of Parliament, or even Ministerial whim. I could be given the same rights as a non-maternal lesbian partner (which I think means essentially, none) or those of an anonymous sperm donor with no familial connection (again, none). For as has been proven, when it comes to transsexual people, birth certificates and certificates of marriage are legally meaningless. I might have normal Human Rights, but unlike other people, I can never be sure. They can be withdrawn in an instant, as witnessed by the APO's recent policy of ceasing to provide limited validity passports for surgery overseas, a practice of longstanding, and one which was designed to protect Australian citizens from persecution. Now they encourage it. And this was not by Act of Parliament, but my Ministerial fiat, the deliberations (if any) secret.

I would be required to provide child support though. That's the way it works, only the rights have been removed, not the balancing responsibilities. That pattern in my experience has been Universal.

So am I a victim? Hardly. I have a partner who loves me. I have a child. I have a reasonable intellect, some legal knowledge, and I live in a place where persecution of any kind is socially unacceptable. Unlike most transgendered people, I'm not marginalised, or without resources to fight. Compared to others, I've been unbelievably blessed, and I know it.

I'm not in my 80's, and faced with a lifetime of struggle, when I'm just too frail to take that on. Suicide is not even a remote possibility - I have a son anyway, and he needs me, so even if I was at the brink of despair, I couldn't exercise that option. Besides which, people like me, people like us, have had many decades of ruthless Darwinian selection weeding out the ones who gave up just because the cause was hopeless. It just gets our dander up, and makes us fight harder.

For those in various Government departments who have been horrified at my treatment, and gone out of their way to help, I've sent letters of commendation to the appropriate Minister. You see, most people are basically good. I've been helped by many of them.

And for those who try to persecute me, and sometimes succeed, I intend to be their Worst Nightmare. People like me may not have much of a bite, but we just don't give up. We win by refusing to lose. That means submissions to Human Rights Commissions, commenting on blogs and at newspaper sites, blogging to bring this kind of thing to others' attention... I'll quote General Schwarzkopf:
We're going to go around, over, through, on top, underneath and any other way it takes to beat them.
How long will it take? No idea. We have victories in the courts, then get retaliation as the result. Sometimes one step forwards, two steps back, and sometimes tens steps forward and one step back. Progress worldwide has been steady, but that in the US and Australia, less so. We've gone backwards there over the last two decades, in some areas better, but in many others worse.

We're not going away though. And while victimised, we refuse to take on our assigned role of victims. We're also not alone, for many who are neutral in the struggle become allies when they see first-hand what's happening. Frankly, those opposing us don't stand a chance.

Did I mention I was born in England? We have a tradition of this kind of thing. Truth to tell, our guilty secret, we actually enjoy the "backs to the wall... fight them on the hills and in the streets, on the beaches and on the landing grounds" bit. Especially when we have more Allies backing us up than we like to think we have.
We shall defend our humanity, whatever the cost may be, we shall fight in the courts, we shall fight in the legislatures, we shall fight in the comments and in the newspapers, we shall fight in the blogs; we shall never surrender.
Now on to working on my PhD, because we also have lives too. We are, after all, human.


Anonymous said...

Zoe, may I suggest that you contact Yasmin Hunter at ICLC in Sydney at ... she would be glad to hear from you. An ICLC lawyer represented Grace Abrams in her case.

Anonymous said...

i shouldnt smile, but I couldnt help myself

'I am not married to my wife as I am a female, but I am not allowed a birth certificate as a woman because I am married.'