John Howard was given the choice of including further phrases to his 2004 Marriage Act modification that may have restricted transgender folks’s skill to marry by making eligibility based mostly on gender at start, however selected to not pursue it.
Cupboard papers from 2004, launched by the Nationwide Archives, present the Howard authorities was suggested it might transcend the formal definition of marriage it in the end enshrined in legislation, and stipulate {that a} couple will need to have been born female and male respectively to be allowed to marry.
The papers affirm the federal government’s choice to formally outline marriage was pushed by concern about new legal guidelines within the ACT permitting same-sex adoptions. It was additionally involved about abroad same-sex marriages and anticipated strain to recognise them in Australia.
The cupboard selected 16 February to name for recommendation, and fewer than a fortnight later the legal professional common’s division responded, highlighting that Western Australian and Tasmanian legislation additionally permitted same-sex adoption and elevating potential methods to handle this.
“A formal definition of marriage could be included in the Marriage Act,” the division proposed in a memorandum to cupboard on 27 February 2004. It suggested {that a} particular provision may be inserted that abroad same-sex marriages wouldn’t be recognised.
“This would represent a clear statement of the existing legal position and pre-empt attempts by some couples to approach the Family Court for recognition of same-sex marriages entered into under Canadian law in particular.”
Howard adopted that place. Nonetheless, the recommendation went additional, suggesting the cupboard might additionally ringfence the establishment of marriage from different perceived threats, together with from transgender folks.
“The Marriage Act could be amended to define the factors to be taken into account in determining whether a person is a man or a woman,” the legal professional common’s division memorandum suggested.
The memo famous that the federal courtroom had established a precedent for transgender marriage the earlier yr in a case often called Re Kevin by accepting the post-operative gender of somebody who had undergone reassignment surgical procedure. It recommended the Marriage Act may very well be used to counter this.
“If the Marriage Act were to define ‘man’ and ‘woman’ by reference to their sex at birth, a transsexual person who has undergone sexual reassignment would not be able to marry in their reassigned gender,” the division suggested.
It cautioned about different implications, together with that “any definition relying on biological characteristics at birth is likely to preclude intersex people from marrying”.
It warned that if cupboard agreed to the proposed change, any marriages involving transgender folks between the time of the federal courtroom ruling and the passage of the Marriage Act modification could be thought-about lawful.
“The announcement of a proposal to introduce legislation may be an incentive for post-operative transsexuals to marry,” it mentioned.
Additional, the departmental memo suggested that any such definitional change regarding gender at start would must be restricted to the Marriage Act, given the legal legislation and social safety already acknowledged transgender folks.
It famous additional potential “practical issues” to be overcome in relation to any reference to start gender, together with that each one jurisdictions besides Victoria allowed for a intercourse change to be registered and a brand new start certificates issued.
after e-newsletter promotion
“A possible alternative might be to require an addition to the declaration that parties to a marriage must make [sure] that there are no legal impediments to their marrying,” the memo mentioned. “Approximately 100,000 marriages take place in Australia each year and some members of the public may find intrusive a question as to their sex at birth.”
On 15 April, cupboard resolved to legislate to outline marriage as “the union of a man and a woman to the exclusion of all others, voluntarily entered into for life” with out including any reference to start gender, and to state explicitly that same-sex marriages ratified abroad wouldn’t be recognised.
It additionally agreed to legislate, counting on the constitutional exterior affairs energy, to not recognise abroad adoptions by same-sex {couples}, however didn’t proceed till three years later, after Australia’s first authorized adoption by a homosexual couple occurred in WA in June 2007. The laws didn’t go earlier than the Coalition misplaced authorities later that yr.
Talking upfront of the cupboard papers launch, Howard mentioned he couldn’t recall the birth-gender proposal and didn’t severely think about it.
“I had no intention at that time of doing other than inserting into the act the definition given by the [English courts],” Howard mentioned.
In August 2004, Howard instructed a nationwide marriage discussion board his proposal to outline marriage in laws was “an opportunity” that he hoped parliament would grasp inside a fortnight.
“It is not far fetched to imagine that if we don’t change the law, there could in the future be some judicial experimentation,” Howard mentioned on the time. “… I don’t think this is something that should be decided by the judges. If the law of this country is to change, it should be changed by the people’s representatives and by nobody else.”
He argued the Marriage Act modification was not stripping rights from anybody. Per week later, the modification handed with the Labor opposition’s assist.
“It doesn’t seek to take away from others in the community any rights they now have. Rather it seeks to reaffirm the pre-eminent place of marriage and the margin for marriage, if I can put it that way, that has always existed in our society,” he mentioned.
