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| "This thing ain't over. Not by a longshot" Paige Phoenix. Photo: http://www.samesame.com.au/features/9754/Paige-Phoenix-This-thing-aint-over-Not-by-a-long-shot |
Like so many young men Paige Pheonix considered marrying his long-term girlfriend Sara to
be one of the happiest days of his life. But just weeks after opening wedding gifts Paige
would open a letter that would make his stomach churn.
“It was devastating. The happiest moment of my life was effectively taken away from me. My
legitimacy as a man was called into question. My relationship was also delegitimated,” he
said.
The letter from the Victorian Government informed Paige that his marriage had been
annulled.
Paige had been labelled female at birth but had transitioned to male before he had even met
his wife. His passport and all of his legal documents recognised him as male. All except for
his birth certificate, but that was the one that mattered. By Victorian law the gender marker
on a birth certificate can only be changed after full sex reassignment surgery. However an
adrenal insufficiency called Addison’s Disease made getting this surgery an impossibility for
Paige. He’d already asked the Births Deaths and Marriages office for an exemption on the
grounds of disability but had been refused. Having provided an Australian passport, one of
two options for identification when applying for a marriage, Paige assumed his would be
approved.
“I think somewhere in the back of my mind I thought that it was a possibility, but being the
holder of a valid male passport and that being the required document, an annulment seemed
unlikely. I was already recognised as a man on a federal level. You would think that trumps
state…” he said.
For people like Paige who are legally unable to marry because the law doesn’t recognise
their gender, being refused for marriage is about more than the absence of a legal
document. Paige says having their marriage voided created a wealth of pressure both
internally and externally.
“Having your relationship, and your gender challenged is awful. Going through all the
consideration and care (not to mention the expense!) of committing to someone and then
planning a wedding only to have a bureaucratic issue render it void generated all kinds of
tensions for us as a couple, not to mention concerns about how our relationship and my
gender was then viewed by society and family members. It was just horrible.”
Paige’s thoughts are echoed by Harrington Family lawyers partner Stephen Page who
specialises in LGBTI+ matters.
“What could be worse than making wedding plans and then discovering that your celebrant
won’t officiate at your wedding because they believe that you’re the wrong gender, or you
haven’t had enough surgery, or you haven’t met some technical requirement? I’ve seen that
happen and that’s just awful. I couldn’t think of much worse than that. Not being able to get
married even though you believe you’re in full compliance with the law,” he said.
But Stephen’s concerns go deeper, Australia’s marriage laws mean couples also encounter
problems if a person decides to transition once they are married. In Queensland to legally
change their gender a person must not be married. This means that if a couple is already
married, and want to stay together, they are forced to decide between their marital status
and their legally recognised gender.
Human Rights Commissioner Tim Wilson is working to change Australia’s marriage laws to
prevent such complications.
“It is morally reprehensible that the law should forcefully divorce couples in resilient
relationships,” he said.
As part of his solution Tim has written a proposal for a change to the marriage act that
separates legal and religious definitions of marriage.
“Some people wrongly argue that religious freedom ends at the temple door. It doesn’t, in
the same way sexual orientation doesn’t end at the bedroom door. But a necessary
precondition for your rights being respected is that you must respect the rights of others. If
religious Australians want the law to preserve religious marriage and be free to act
consistent with their conscience, then they can’t concurrently deny same-sex couples a civil
marriage,” he writes in his proposal.
Tim’s aim is to work with both sides of the marriage equality debate to find a solution that
meets the needs of both parties. Last month he proposed a separation of “civil marriage” and
“religious marriage”.
“A civil marriage then could be defined as a union of two people, while a religious marriage
could be defined as a union between a man and a woman, unless specified otherwise by a
faith,” he wrote.
Australian Marriage laws have been at the forefront of many conversations after the US
Supreme Court legalised same-sex marriage across all states and the Irish government
amended the marriage act of their constitution by way of referendum. The issue seems to be
pressing on Australian politicians with a certain inevitability felt toward the change to the
marriage act. Often on the outer rim of the issue are those in heterosexual relationships who
are unable to marry because one of them was assigned the wrong gender at birth. Tim
doesn’t agree that a change is inevitable, but he recognises a clear cultural shift toward
equality.
“Nothing is inevitable. But I do believe that a key divide in this issue is intergenerational, and
over time the degree of support for a change in the law will only increase,” he said.
