Saturday, 31 May 2008

The Law Is A Ass Dept.

The legal kludges in the USA and elsewhere to stop same-sex marriage lead to ridiculous results that bring the law into disrepute.
A woman with Swyer Syndrome and 46xy (male) chromosomes could get married to a woman in Kansas (by Kantaras vs Kantaras, male chromosomes == male), then move to Louisiana, and marry a man. Neither state would recognise the other marriage as valid, so there's no question of bigamy. Things would get very complicated if she became a surrogate mother, from an egg donated by her wife and fertilised by her husband.
As she well might.

I remind everyone that I have dual UK/Australian citizenship. Were I not married (to a woman), here in Australia I could only marry a man (as same-sex marriage is forbidden), and in the UK I could only marry another woman, again as same-sex marriage is forbidden. Different definitions, again.


Lloyd Flack said...

The only way out that I can think of is to split marriage into two institutions.

This would involve have ing a civil contract that provides the same legal parnership and kinship benefits that marriage does now but makes no mention of the sexes of the partners. This is what the state should register and recognize.

And then there should be the personal commitment ceremony the marriage itself which the state should have nothing to do with.

It is the defenders of marriage who have brought about this pass with their determination to deny the legal partnership and kinship benefits to everyone except heterosexual couples.

Anonymous said...

Do you know the Australian marriage law for Swyer Syndrome? Is it birth certificate based only, or could I potentially marry a female based on my chromosomes? I assume it's the former. But this is extraordinary, and really does prove how totally daft the whole system is.

Zoe Brain said...

There are two separate issues in Australian Marriage Law.

One is the legal proof of gender required for the celebrant to perform the marriage. The other is whether a marriage that has been celebrated is valid or not.

The Family court takes into account the whole of medical reality. That includes gender identity, social role, body shape, chromosomes, endocrine system, documentation.

So you are currently female, but it wouldn't take very much medical intervention, though rather more change to your social life, to slip over the line if that's what you wanted.

Of course in order to get married, as opposed to the marriage being valid, you must be able to prove your gender to the celebrant. That can mean by a foreign (not Australian) passport, or a Foreign or Australian Birth Certificate.

I have a UK passport saying F, and a UK Birth Certificate saying Boy. So I could provide adequate legal proof to the celebrant of either.

But the marriage could be challenged as invalid if I married a woman, and I wouldn't have a leg to stand on. My chromosomes are xy, my birth certificate is boy, but that's all. I identify as female, I am known in the community as female, to medicare I am female, all but my BC documentation says female, etc etc.

So in the ordinary meaning of the word, I am a woman, and the BC and chromosomes be damned. The Re Kevin decisions made this clear, though in that case, the BC was also consistent. The Govt argued that the BC was meaningless though in that case, and the court accepted that the BC on its own wasn't enough. You had to look at the whole situation, and apply some common sense.

What hasn't been decided is what rights a person with X on their BC has to marry. To say that they are neither M nor F so can't marry at all violates several international human rights conventions, and so it's possible though unlikely that a person in that situation can't marry at all. More likely is that they could marry either, but would be required to show proof of consistently living as a male, or consistently living as a female, for the marriage to be valid.

I would suggest a letter to the Federal attorney-general on the subject. Don't expect an answer though!

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