Towards a Gender Fluid Society

It's really transgender marriage, no matter what the postal ballot says.
Download "Talking points" leafletGo to detailed Q & A

Towards a Gender Fluid Society

It's really transgender marriage, no matter what the postal ballot says.
Download "Talking points"Go to Q & A

George Christensen MP speaks about the gender revolution coming your way.

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Sexton Marketing surveyed 2,500 Australians in December 2016 and found:

%

84% were concerned at parents having no say on what is or is not included in sex education classes at their children’s school, and no right to take their children out of those classes if they do not agree with the content.

82% were concerned about teaching children as young as those in kindy or primary school that they can choose whatever gender they want.

%

Sexton Marketing surveyed 2,500 Australians in December 2016 and found:

  • 84% were concerned at parents having no say on what is or is not included in sex education classes at their children’s school, and no right to take their children out of those classes if they do not agree with the content. 84%
  • 82% were concerned about teaching children as young as those in kindy or primary school that they can choose whatever gender they want. 82%
Is it same-sex marriage…?

Is it same-sex marriage…?

In the various bills* that have gone before the parliament, legal marriage between any ‘2 people’ means any ‘2 people’ with any gender identities.

This is transgender marriage.

* Expandable section 4 further down on this page provides details of some of those bills.

In the various bills* that have gone before the parliament, legal marriage between any ‘2 people’ means any ‘2 people’ with any gender identities.

This is transgender marriage.

* Expandable section 4 further down on this page provides details of some of those bills.

Gender identities

Over 100 gender identities now legal under the federal Sex Discrimination Act 1984

Gender identities

Over 100 gender identities now legal under the federal Sex Discrimination Act 1984

If transgender marriage becomes law…  
If transgender marriage becomes law…  

how would the government make

how would the government make

Australian society

Australian
society

adopt it over time?

adopt it over time?

Teach it to all our kids:
Teach it to all our kids:
Want to know more?
Click on the following sections to learn more:
1. What do you mean by "gender is fluid"?

Transgender (gender fluid) theory claims that a person’s gender is fluid and not necessarily related to their biological birth sex. A person’s gender identity, based on how a person feels, can be on:

  • a spectrum of male-to-female, so that a person can be 46% male and 54% female. Every person on earth can have their own unique gender identity on this spectrum; or
  • it can be unrelated to sex (e.g. agender, gender queer, bigender, androgyne). Facebook listed 58 genders, Tumblr 112 genders.
  • or it can refer to persons who identify as genderless.

These gender identities have been given legal recognition. Gender identity is a protected attribute in the federal Sex Discrimination Act 1984 (S 4).  Gender identity is defined as the gender related “appearance or mannerisms or other gender-related characteristics of a person (whether by way of medical intervention or not), with or without regard to the person’s designated sex at birth.”

Under the Sex Discrimination Act 1984, it is an offence to treat “less favourable” a person because of their gender identity or marital status.

The problem is that all gender fluid (transgender) terminology is defined against biological, binary, male and female sex. Persons on a spectrum of male-to-female, are defined against binary male and female. Non binary gender fluid identities, like those on Facebook or Tumblr, are defined against binary male and female. Even “genderless” is defined against binary male and female. In which case, we are either all trans or we are all neither male nor female.

[T]he logical conclusion of all this”, according to Rebecca Reilly-Cooper, a political philosopher at the University of Warwick in the UK, “is: if gender is a spectrum, not a binary, then everyone is trans. Or alternatively, there are no trans people. Either way, this a profoundly unsatisfactory conclusion …”

2. What is transgender (gender fluid) marriage?

Transgender (gender fluid) marriage: Australians could be forgiven for thinking that marriage between any “2 people” would mean it’s between a man and a woman, or between any two men or two women.

However, many bills to federal parliament have sought to define marriage as the union of “2 people” regardless of their sex, sexual orientation, gender identity (gender fluid) or intersex status.

Gender identity is defined in the federal Sex Discrimination Act 1984 (S 4). It was amended in 2013. The changes erased from Section 4 the definition of “man” as “a member of male sex” and “woman” as “a member of the female sex” and inserted gender identity, meaning their “appearance or mannerisms or other gender-related characteristics of a person (whether by way of medical intervention or not), with or without regard to the person’s designated sex at birth.”

Under the Sex Discrimination Act 1984, it is an offence to treat “less favourable” a person because of their gender identity or their marital status.

Who is eligible to marry under a gender fluid (transgender) marriage law? Any two persons recognised by their fluid gender identity, sexual orientation, sex or intersex status.

3. How would transgender (gender fluid) marriage force gender fluid sex education into schools?

It will be an offence under federal Sex Discrimination Act 1984 (S 21) for teachers to:

  • treat gender fluid (transgender) marriages “less favourably” than same-sex and heterosexual marriages;
  • not tell children that gender is fluid, they can choose their own gender and all genders are equal;
  • not to support a child transitioning to another gender;
  • to refuse boys identifying as girls access to the girls’ showers, change rooms, toilets and sports.

The Act makes gender identity (any fluid gender), marital status (including gender fluid marriages, if transgender marriage is legalised), sexual orientation and intersex status protected attributes. Treating person or married couple “less favourable” would constitute an offence.

Gender fluidity (transgenderism) is already being forced into schools by the Sex Discrimination Act 1984, was amended in 2013. In Section 4, the definition of “man” as “a member of male sex” and “woman” as “a member of the female sex” were repealed and gender identity inserted, meaning their “appearance or mannerisms or other gender-related characteristics of a person (whether by way of medical intervention or not), with or without regard to the person’s designated sex at birth.”

As a result, a boy can self-identify as a girl and a girl can self-identity as a boy. Their new gender identity is protected by the Act. A principal or teacher who did not allow boy to access girls’ facilities could face discrimination charges.

According to the SA Department of Education and Child Development, “Failure to provide transgender students with access to appropriate toilet and change facilities may breach anti-discrimination legislation.” (See Transgender and intersex student support 4.5)

Here are the four state education department gender fluid (transgender) toilet and change room policies. All four states say that these policies are the result of the 2013 changes to the Sex Discrimination Act 1984:–

Victoria: “Toilets, showers and change rooms are specific to each school. The arrangements for the use of these  facilities should be made locally and documented in the school  management plan. Careful consideration should be given to the use of facilities that are appropriate to the student’s preferred or chosen gender”. (Gender identity – Toilet facilities)

South Australia: “4.5: Toilet and change room facilities: Schools may also have unisex/gender neutral facilities. While this is a helpful strategy for creating an inclusive school environment for gender diverse students broadly, it is not appropriate to insist that any student, including a transgender student, use this toilet if they are not comfortable doing so…

“Please note this procedure is mandatory and staff are required to adhere to the content…

“Failure to provide transgender students with access to appropriate toilet and change facilities may breach anti-discrimination legislation”. (Transgender and intersex student support, pg. 7)

NSW: “Where reasonably practicable, the student should be treated on the same basis as other students of the same identified gender… Activities to be considered may include:

  • Use of toilet and change room facilities;
  • Excursions including overnight excursions;
  • School sport;
  • Curriculum;
  • Health care planning; and;
  • Gender transitioning while at school.”

(Transgender students in schools – legal rights and responsibilities, pg. 2.)

Queensland: “Toilet and change room use – When determining which toilets and change rooms a student will use, the school should discuss this with the student/parent/carer (where applicable) and consider options at the school based on available facilities e.g. the establishment of non-gender specific toilets and change rooms where there are individual stalls or cubicles that can provide privacy for all users.

“School dress code – A school uniform option should be available that can be worn by students of any gender. Students who are transgender or intersex should be permitted to wear the uniform of their choosing.”  (Diversity in Queensland schools – information for principals, pg. 2)

4. Did you know there have been 13 transgender marriage bills in parliament?

Since 2004, there have been 20 bills to replace the definition of marriage as being between one man and one woman with marriage between any “2 people.” Many of these 20 bills have been for transgender marriage. Here are some examples.

Recent transgender marriage bills

Amendment (Definition and Religious Freedoms) Bill 2017

Prepared by:Dean Smith (Lib, WA)

Tim Wilson (Lib, Vic)

Warrant Entsch (Lib, Qld)

Trevor Evans (Lib, Ald)

Trent Zimmerman (Lib, NSW)

Jason Wood (Lib, Vic)

Gender fluid (transgender) marriage

marriage is defined as “the union of 2 people to the exclusion of all others, voluntarily entered into for life.”

The Bill amends the Sex Discrimination Act 1984 to recognise refusal to solemnise a “marriage as applying  reference to applying “by reference to section 5A, ·5B, 5C or 6” of the Sex Discrimination Act 1984,  which recognise persons by their sexual orientation, gender identity, intersex and marriage status.

Exposure Draft Marriage Amendment (Same-Sex Marriage) Bill (2016)

George Brandis, Attorney General

Gender fluid (transgender) marriage

Attorney-General’s Department: “the union of 2 people, to the exclusion of all others, voluntarily entered into for life” would mean “[s]ame-sex couples, and couples including people who are intersex or of a non-binary gender, would be able to marry.” (Submission 78 pg. 2 to Senate Inquiry)

Marriage Legislation Amendment Bill 2016

Mr Bandt (Greens, Vic),
Ms McGowan (IND, Vic)Mr Wilkie (IND, Tas)

Gender fluid (transgender) marriage

marriage means the union of 2 people to the exclusion of all others, voluntarily entered into for life.

The object of this Act is to allow couples to marry, and to have their marriages recognised, regardless of sex, sexual orientation, gender identity or intersex status.

Marriage Legislation Amendment Bill 2016

Bill Shorten, (ALP, Vic, Leader of the Opposition)

Gender fluid (transgender) marriage

marriage means the union of 2 people to the exclusion of all others, voluntarily entered into for life.

The object of this Act is to allow couples to marry, and to have their marriages recognised, regardless of sex, sexual orientation, gender identity or intersex status.

Marriage Amendment (Marriage Equality) Bill 2016

Tanya Plibersek (ALP, NSW)

Gender fluid (transgender) marriage

marriage means the union of two people to the exclusion of all others, voluntarily entered into for life.

Explanatory Memorandum: the objective is to allow “Australians to marry regardless of their sex, sexual orientation, gender identity or intersex status.”

Marriage Legislation Amendment Bill 2015

Warren Entsch (LP, Qld)
Teresa Gambaro (LP, Qld)
Terri Butler (ALP, Qld)
Laurie Ferguson (ALP, NSW)
Adam Bandt (AG, Vic)Cathy McGowan (IND, Vic) Andrew Wilkie (IND Tas)

Gender fluid (transgender) marriage

marriage means the union of 2 people to the exclusion of all others, voluntarily entered into for life.

The object of this Act is to allow couples to marry, and to have their marriages recognised, regardless of sex, sexual orientation, gender identity or intersex status.

5. Which political parties or politicians support transgender (gender fluid) marriage?

In early 2017, the Federal Attorney General’s Department said that marriage between “two people” would allow marriage between “[s]ame-sex couples, and couples including people who are intersex or of a non-binary gender.” Hence, marriage between “two people” would encompass transgenders in marriage (transgender marriage), same-sex marriage and opposite-sex (heterosexual) marriage. (See Department’s submission 78 (pg. 2) to a Senate Inquiry)

The Australian Greens’ policy is to “end to discrimination in marriage against same-sex attracted, gender diverse and intersex people.” To that end, “Marriage equality is an important step towards reducing discrimination faced by lesbian, gay, bisexual, transgender, intersex Australians in same sex relationships, and their families.”

The Greens have been the most persistent in attempting to redefine marriage. Greens members sponsored or cosponsored 11 bills to redefine marriage, variously coming from Adam Bandt, Sarah Hanson-Young (six bills), Kerry Nettle and Michael Organ.

The Nick Xenophon team’s policy has supported transgender marriage: Remove all discrimination from the Marriage Act to ensure that all people, regardless of their sex or gender identity, have the opportunity to marry.”

Liberal Democrat, David Leyonhjelm, sponsored a transgender marriage bill in 2014.

One Nation policy is to let Australians decide the issue of marriage to “in a referendum, rather than a vote on the floor of Parliament.” If there is a parliamentary vote, its members/senators will have “a conscience vote” on the issue.

The Labor Party appears to be conflicted on the issue of transgender marriage. On the one hand, the 2011 Labor National Conference adopted a policy to “amend the Marriage Act to ensure equal access to marriage under statute for all adult couples irrespective of sex who have a mutual commitment to a shared life.” The ALP public campaign has been for same-sex marriage.

On the other hand, Labor Party members of Federal parliament – including the leader of the Opposition, Bill Shorten – have moved, or co-sponsored, four bills since 2015 in which marriage defined marriage as being between “two people.” In three of these bills, the Objects of the Bill is to be recognise marriage between couples to marry “regardless of sex, sexual orientation, gender identity or intersex status.” For example, see here.

Liberal and National Parties: Under Prime Minister Tony Abbott, the Liberal National Party Coalition government changed its policy from support for opposite-sex, heterosexual marriage to holding a plebiscite of all Australians to decide the definition of marriage. Under Prime Minister Malcolm Turnbull, the same policy has been maintained.

However, two members of the Liberal Party, Warren Entsch and Teresa Gambaro, co-sponsored a 2015 cross-party Bill for transgender marriage and six Liberal parliamentarians presented a transgender marriage bill to the Coalition joint party room in August 2017 (Amendment (Definition and Religious Freedoms) Bill 2017.)

6. Do Marriage Equality groups support transgender (gender fluid) marriage?

In early 2017, a Senate Select Committee inquired into the Exposure Draft of the Marriage Amendment (Same-Sex Marriage) Bill. The Federal government planned to put to the Bill to parliament in the event of a plebiscite vote supporting a redefinition of marriage.

Many submissions from same-sex marriage groups supported gender fluid (transgender) marriage.

Australian Human Rights Commission: “The Exposure Draft is the first bill released by the current Government to propose expanding the definition of marriage to include unions between two people, irrespective of their sex, sexual orientation, gender identity or intersex status.” (Submission 72, pg. 3. )

“The Commission considers that civil marriage should be available, without discrimination, to all couples, regardless of sex, sexual orientation, gender identity or intersex status …” (Submission 72, pg. 6)

The Law Council of Australia: Because the Bill’s title did not reflect the scope of the proposed legislation, the Council reported the Law Institute of Victoria’s recommendation to amend the title of the Bill by “replacing ‘same-sex marriage’ with a more inclusive term that would encompass intersex and transgender persons. Amended titles for the Exposure Draft could include ‘Marriage Amendment (Marriage Equality) Bill’, or ‘Marriage Amendment (Equal Marriage) Bill’, or ‘Marriage Amendment Bill.’” (Submission 74, pg. 13.)

Law Institute of Victoria (LIV):  A LIV representative told the Senate Hearings on the Exposure Draft Bill, “… the Law Institute welcomes the release of the exposure draft because it would amend the Marriage Act to allow for marriage between two people regardless of their sex, sexual orientation or gender identity.” (Hearings Transcripts, 23 January 2017)

Liberty Victoria said that although the amendments in the Draft Exposure Bill were “required to grant equality regardless of sex or gender identity,” using the term “same-sex marriage in the Bill’s title “ignores the experience of transgender and intersex people, for whom the legal status of ‘man’ or ‘woman’ can be problematic.” Accordingly, Liberty Victoria said it should be retitled the “marriage equality” bill. (Submission 22)

Austrliasn4Equality and Marriage Equality: “We strongly support the draft Bill’s change in the definition of marriage from being between ‘man and woman’ to ‘2 people’, which is inclusive of all LGBTI people and relationships.” (Submission 66)

In 2013, Alex Greenwich, National Convenor of Marriage Equality, responded publicly to complaints the Vice-President of Organisation Intersex International Australia Ltd, that “intersex, trans and gender diverse people” were being excluded from proposals only for same-sex marriage. Alex Greenwich responded saying, “Amendments to the federal marriage act to allow any two adults to marry (as was the amendments in NZ), would solve everyone’s problem.”

just.equal: “Most marriage equality legislation that has been proposed makes it clear that marriage is between two people regardless of sex, gender or sexual orientation. This helps ensure marriage equality is fully inclusive of transgender and intersex people. We believe the Marriage Amendment (Same-Sex Marriage) Bill should do the same.” (Submission 59)

Human Rights Law Centre: “We strongly support key aspects of the Draft Bill … [which] would allow all loving adult couples to marry regardless of their sexual orientation, gender identity or intersex status.” (Submission 77)

ACON, formerly AIDS Council of NSW: The Draft Bill’s change in the definition of marriage from ‘man and woman’ to ‘2 people’ ensures “that intersex, transgender and gender diverse people who are currently not able to marry under existing laws, will be able to do so.” (Submission 123)

Victorian Gay and Lesbian Rights Lobby: “…the VGLRL welcomes the change in definition of marriage from between ‘a man and a woman’ to ‘two people’. We believe inclusive language should be reflected throughout the bill. The title of the bill ‘Same-Sex Marriage’ excludes trans and gender diverse persons, and should be amended.” (Submission 34)

Victorian Equal Opportunity and Human Rights Commission: VEOHRC objected to the Exposure Draft Bill allowing civil celebrants to the right not to solemnise a marriage if it conflicted with their “conscientious” religious belief. VEOHRC said this would discriminate against couples who wanted to marry and be recognised “on the basis of their sexual orientation, sex or gender identity.” (Submission 70)

Brisbane Lesbian Gay Bisexual Transgender Intersex and Queer Action Group (BLAG): Regarding marriage between “2 people,” the group says: “this definition importantly includes transgender and intersex people…” (Submission 9)

Victorian Trades Hall Council: “We strongly endorse the proposal to alter the definition of marriage by removing a ‘man and a woman’ and replacing it with ‘2 people’. This change will embed the right of all LGBTIQ people to have their loving, committed relationships treated equally under Australian law.” (Submission 20)

Women’s Health Tasmania: The group complained that the Bill did not go far enough to explicitly include transgenders. “[T]he definition of marriage to ‘two people’ also fails to make it perfectly clear marriage will be recognised between two people regardless of sex, sexual orientation and/or gender identity.” (Submission 29)

New South Wales Parliamentary Working Group on Marriage Equality: “The inclusion of ‘2 people’ ensures that all relationships across the LGBTI spectrum, regardless of gender or sex, are treated equally under the law.” (Submission 30)

Equal Opportunity Tasmania: The group said the Bill “will remove a major obstacle to equality before the law for people in same-sex relationships and those of diverse gender identity.” (Submission 32)

Organisation Intersex International Australia Limited (“OII Australia”): OII welcomed the redefinition of marriage as between “2 people” because “[t]hese changes in language helpfully make no assumptions about legal, biological or individual concepts of sex or gender.” (Submission 8)

Rainbow Labor NSW: “We fully endorse and support the change to the definition of marriage from being between ‘man and woman’ to ‘2 people’. We believe that such a change recognises the right of adults to marry the person they love, and is inclusive of LGBTIQ people and their relationships.” (Submission 39)

PFLAG  NSW: “We …strongly support the draft Bill’s change in the definition of marriage from being between ‘a man and a woman to ‘2 people’, which is inclusive of all GLBTI people and relationships.” (Submission 43)

PFLAG told an earlier Inquiry into Same-Sex Marriage Law in NSW, “It is time for Australia to honour its human rights obligations under the International Covenant on Civil and Political Rights (ICCPR) so that marriage is recognized as a union of two people, regardless of their sex, sexual orientation or gender identity, to the exclusion of all others, voluntarily entered into for life.”

 

Gay and Lesbian Rights Lobby NSW: The Lobby welcomed “inclusive language in referring to ‘2 people’ and ‘spouse’ over the gender-specific terms of man, woman and husband. This language change is significant in recognising the many Australians who identify as intersex, trans or gender neutral, allowing all people regardless of their gender identity to have their relationships recognised.” (Submission 44)

Amnesty International: “Amnesty International Australia unequivocally opposes discrimination in civil marriage laws on the basis of sexual orientation, intersex status or gender identity.” (Submission 46)

Australian Lawyers for Human Rights: “… civil marriage and any services related to civil marriage should be available, without discrimination, to all couples, regardless of sex, sexual orientation or gender identity.” (Submission 51)

Castan Centre for Human Rights Law, Monash University: “… allowing marriage celebrants to discriminate on the basis of a person’s sexual orientation, gender identity or intersex status is a breach of human rights and should be removed from the Exposure Draft of the Marriage Amendment (Same-Sex Marriage) Bill.” (Submission 63)

Uniting Church LBTIQ Network Australia: “We assume the intention [of the draft Bill] is to make available to all Australians, regardless of sexual orientation, gender, gender identity or intersex status, the legal institution of marriage.” (Submission 64)

The Tasmanian Gay and Lesbian Rights Group: “Most marriage equality legislation that has been proposed makes it clear marriage is between two people regardless of sex, gender or sexual orientation. We believe the Marriage Amendment (Same-Sex Marriage) Bill should do the same. This is particularly the case given some couples where one partner is transgender or intersex may not fall within the definition of same sex or opposite sex.” (Submission 83)

The National LGBTI Health Alliance: “The National LGBTI Health Alliance strongly supports the changes of wording in the Exposure Draft definition of marriage from ‘man and woman’ to ‘two (2) people’. This change in language assists in the removal of assumptions about legal or biological sex and gender, will be more inclusive and will through the removal of barriers to equal access, improve the health and wellbeing of LGBTI people.” (Submission 89)

The Australian Psychological Society: The Draft Bill is “an important step towards achieving marriage equality and eliminating discrimination towards LGBTI communities within Australian society. We support the proposed change of the definition of marriage from being between ‘a man and a woman’ to ‘two people’ regardless of their gender…” (Submission 98)

The Northern Territory Anti-Discrimination Commission: “The exemptions as set out in the Bill to amend the Marriage Act 1961 …  will enshrine a differential approach to marriage for two people on the basis of their sex, sexual orientation, gender identity, intersex status etc.” (Submission 102)

National Association of Community Legal Centres: “…civil marriage should be available in Australia, without discrimination, to all couples, regardless of sex, sexual orientation or gender identity. As a result, NACLC supports the draft Bill to the extent that it amends the definition of marriage under the Marriage Act from being between a ‘man and woman’ to ‘two people.’” (Submission 108)

Victorian Government: “Amending the definition of marriage to include a union of ‘2 people’ is very welcome, as this includes couples of any gender and would promote the right to equality and non-discrimination… This will ensure that two people of any gender, including trans, gender diverse and intersex Australians, can marry.” (Submission 212)

Diversity Council Australia: “Although the title of Commonwealth Government’s exposure draft of the Marriage Amendment (Same- Sex Marriage) Bill refers to ‘same-sex’ marriage, in effect the Bill would provide for marriage equality because the definition of the Bill refers to ‘2 people’. As such, this paper refers to LGBTIQ+ couples.” (Submission 113)

The Anti-Discrimination Commission Queensland: “The right of lesbian, gay, bisexual, transgender, and intersex (LGBTI) couples to have their same-sex marriages recognised by the Commonwealth is soundly based in international human rights principles.” (Submission 124)

Rainbow Families: “We urge the Committee to… [s]trongly recommend that Parliament amend the Marriage Act 1961 (Cth) to extend marriage rights to all Australians, irrespective of gender or sexuality, revoking those legislative restrictions put in place in 2004.” (Submission 143)

City of Sydney: “…the City welcomes the change in the definition of marriage from being between a ‘man and a woman’ to being between ‘two people’ regardless of their gender. Even though the title of the Bill refers to ‘Same-Sex Marriage’, it is understood that this is inclusive of transgender and gender diverse people in the community. This is a necessary inclusion.” (Submission 132)

Conclusion: Many groups advocating to change the definition of marriage have been committed to transgender (gender fluid) marriage, while their public campaigns have been focused only on same-sex marriage.

There is a disjuncture between the media and parliamentary debates on same-sex marriage and the absence of significant debate on, and poor understanding of, many Bills and a plebiscite proposal for transgender (gender fluid) marriage.

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Tap to expand:
1. What do you mean by "gender is fluid"?

Transgender (gender fluid) theory says that a person’s gender is fluid and not necessarily related to their biological birth sex. A person’s gender identity, based on how a person feels, can be on:

  • a spectrum of male-to-female, so that a person can be 46% male and 54% female. Every person on earth can have their own unique gender identity on this spectrum; or
  • it can be unrelated to sex (e.g. agender, gender queer, bigender, androgyne). Facebooklisted 58 genders, Tumblr 112 genders.
  • or it can refer to persons who identify as genderless.

These gender identities have been given legal recognition. Gender identity is a protected attribute in the federal Sex Discrimination Act 1984 (S 4).  Gender identity is defined as the gender related “appearance or mannerisms or other gender-related characteristics of a person (whether by way of medical intervention or not), with or without regard to the person’s designated sex at birth.”

Under the Sex Discrimination Act 1984, it is an offence to treat “less favourable” a person because of their gender identity or marital status.

The problem is that all gender fluid (transgender) terminology is defined against biological, binary, male and female sex. Persons on a spectrum of male-to-female, are defined against binary male and female. Non binary gender fluid identities, like those on Facebook or Tumblr, are defined against binary male and female. Even “genderless” is defined against binary male and female. In which case, we are either all trans or we are all either male or female.

[T]he logical conclusion of all this”, according to Rebecca Reilly-Cooper, a political philosopher at the University of Warwick in the UK, “is: if gender is a spectrum, not a binary, then everyone is trans. Or alternatively, there are no trans people. Either way, this a profoundly unsatisfactory conclusion …”

2. What is transgender (gender fluid) marriage?

Transgender (gender fluid) marriage: Australians could be forgiven for thinking that marriage between any “2 people” would mean it’s between a man and a woman, or between any two men or two women.

Howevermany bills to federal parliament have sought to define marriage as the union of “2 people” regardless of their sex, sexual orientation, gender identity (gender fluid) or intersex status.

Gender identity is defined in the federal Sex Discrimination Act 1984 (S 4). It was amended in 2013. The changes erased from Section 4 the definition of “man” as “a member of male sex” and “woman” as “a member of the female sex” and inserted gender identity, meaning their “appearance or mannerisms or other gender-related characteristics of a person (whether by way of medical intervention or not), with or without regard to the person’s designated sex at birth.”

Under the Sex Discrimination Act 1984, it is an offence to treat “less favourable” a person because of their gender identity or their marital status.

Who is eligible to marry under a gender fluid (transgender) marriage law? Any two persons recognised by their fluid gender identity, sexual orientation, sex or intersex status.

3. How would transgender (gender fluid) marriage force gender fluid sex education into schools?

It will be an offence under federal Sex Discrimination Act 1984 (S 21) for teachers to:

  • treat gender fluid (transgender) marriages “less favourably” than same-sex and heterosexual marriages;
  • not tell children that all gender is fluid and all genders are equal;
  • not to support a child transitioning to another gender;
  • to refuse boys identifying as girls access to the girls’ showers, change rooms, toilets and sports.

The Act makes gender identity (any fluid gender), marital status (including gender fluid marriages, if transgender marriage is legalised), sexual orientation and intersex status protected attributes. Treating person or married couple “less favourable” would constitute an offence.

Gender fluid (transgender) is already being forced into schools by the Sex Discrimination Act 1984, was amended in 2013. In Section 4, the definition of “man” as “a member of male sex” and “woman” as “a member of the female sex” were repealed and gender identity inserted, meaning their “appearance or mannerisms or other gender-related characteristics of a person (whether by way of medical intervention or not), with or without regard to the person’s designated sex at birth.”

As a result, a boy can self-identify as a girl and a girl can self-identity as a boy. Their new gender identity is protected by the Act. A principal or teacher who did not allow boy to access girls’ facilities could face discrimination charges.

According to the SA Department of Education and Child Development, “Failure to provide transgender students with access to appropriate toilet and change facilities may breach anti-discrimination legislation.” (See Transgender and intersex student support 4.5)

Here are the four state education department gender fluid (transgender) toilet and change room policies. All four states say that these policies are the result of the 2013 changes to the Sex Discrimination Act 1984:–

Victoria: “Toilets, showers and change rooms are specific to each school. The arrangements for the use of these  facilities should be made locally and documented in the school  management plan. Careful consideration should be given to the use of facilities that are appropriate to the student’s preferred or chosen gender”. (Gender identity – Toilet facilities)

South Australia: “4.5 Toilet and change room facilities: Schools may also have unisex/gender neutral facilities. While this is a helpful strategy for creating an inclusive school environment for gender diverse students broadly, it is not appropriate to insist that any student, including a transgender student, use this toilet if they are not comfortable doing so…

“Please note this procedure is mandatory and staff are required to adhere to the content…

“Failure to provide transgender students with access to appropriate toilet and change facilities may breach anti-discrimination legislation”. (Transgender and intersex student support, pg. 7)

NSW: “Where reasonably practicable, the student should be treated on the same basis as other students of the same identified gender… Activities to be considered may include:

  • Use of toilet and change room facilities;
  • Excursions including overnight excursions;
  • School sport;
  • Curriculum;
  • Health care planning; and;
  • Gender transitioning while at school.”

(Transgender students in schools – legal rights and responsibilities, pg. 2.)

Queensland: “Toilet and change room use – When determining which toilets and change rooms a student will use, the school should discuss this with the student/parent/carer (where applicable) and consider options at the school based on available facilities e.g. the establishment of non-gender specific toilets and change rooms where there are individual stalls or cubicles that can provide privacy for all users.

“School dress code – A school uniform option should be available that can be worn by students of any gender. Students who are transgender or intersex should be permitted to wear the uniform of their choosing.”  (Diversity in Queensland schools – information for principals, pg. 2)

4. Did you know there have been 13 transgender marriage bills in parliament?

Since 2004, there have been 20 bills to replace the definition of marriage as being between one man and one woman with marriage between any “2 people.” Many of these 20 bills have been for transgender marriage. Here are some examples.

Recent transgender marriage bills

Amendment (Definition and Religious Freedoms) Bill 2017

Prepared by:Dean Smith (Lib, WA)

Tim Wilson (Lib, Vic)

Warrant Entsch (Lib, Qld)

Trevor Evans (Lib, Ald)

Trent Zimmerman (Lib, NSW)

Jason Wood (Lib, Vic)

Gender fluid (transgender) marriage

marriage is defined as “the union of 2 people to the exclusion of all others, voluntarily entered into for life.”

The Bill amends the Sex Discrimination Act 1984 to recognise refusal to solemnise a “marriage as applying  reference to applying “by reference to section 5A, ·5B, 5C or 6” of the Sex Discrimination Act 1984,  which recognise persons by their sexual orientation, gender identity, intersex and marriage status.

Exposure Draft Marriage Amendment (Same-Sex Marriage) Bill (2016)

George Brandis, Attorney General

Gender fluid (transgender) marriage

Attorney-General’s Department: “the union of 2 people, to the exclusion of all others, voluntarily entered into for life” would mean “[s]ame-sex couples, and couples including people who are intersex or of a non-binary gender, would be able to marry.” (Submission 78 pg. 2 to Senate Inquiry)

Marriage Legislation Amendment Bill 2016

Mr Bandt (Greens, Vic),
Ms McGowan (IND, Vic)Mr Wilkie (IND, Tas)

Gender fluid (transgender) marriage

marriage means the union of 2 people to the exclusion of all others, voluntarily entered into for life.

The object of this Act is to allow couples to marry, and to have their marriages recognised, regardless of sex, sexual orientation, gender identity or intersex status.

Marriage Legislation Amendment Bill 2016

Bill Shorten, (ALP, Vic, Leader of the Opposition)

Gender fluid (transgender) marriage

marriage means the union of 2 people to the exclusion of all others, voluntarily entered into for life.

The object of this Act is to allow couples to marry, and to have their marriages recognised, regardless of sex, sexual orientation, gender identity or intersex status.

Marriage Amendment (Marriage Equality) Bill 2016

Tanya Plibersek (ALP, NSW)

Gender fluid (transgender) marriage

marriage means the union of two people to the exclusion of all others, voluntarily entered into for life.

Explanatory Memorandum: the objective is to allow “Australians to marry regardless of their sex, sexual orientation, gender identity or intersex status.”

Marriage Legislation Amendment Bill 2015

Warren Entsch (LP, Qld)
Teresa Gambaro (LP, Qld)
Terri Butler (ALP, Qld)
Laurie Ferguson (ALP, NSW)
Adam Bandt (AG, Vic)Cathy McGowan (IND, Vic) Andrew Wilkie (IND Tas)

Gender fluid (transgender) marriage

marriage means the union of 2 people to the exclusion of all others, voluntarily entered into for life.

The object of this Act is to allow couples to marry, and to have their marriages recognised, regardless of sex, sexual orientation, gender identity or intersex status.

5. Which political parties or politicians support transgender (gender fluid) marriage?

In early 2017, the Federal Attorney General’s Department said that marriage between “two people” would allow marriage between “[s]ame-sex couples, and couples including people who are intersex or of a non-binary gender.” Hence, marriage between “two people” would encompass transgenders in marriage (transgender marriage), same-sex marriage and opposite-sex (heterosexual) marriage. (See Department’s submission 78 (pg. 2) to a Senate Inquiry)

The Australian Greens’ policy is to “end to discrimination in marriage against same-sex attracted, gender diverse and intersex people.” To that end, “Marriage equality is an important step towards reducing discrimination faced by lesbian, gay, bisexual, transgender, intersex Australians in same sex relationships, and their families.”

The Greens have been the most persistent in attempting to redefine marriage. Greens members sponsored or cosponsored 11 bills to redefine marriage, variously coming from Adam Bandt, Sarah Hanson-Young (six bills), Kerry Nettle and Michael Organ.

The Nick Xenophon team’s policy has supported transgender marriage: Remove all discrimination from the Marriage Act to ensure that all people, regardless of their sex or gender identity, have the opportunity to marry.”

Liberal Democrat, David Leyonhjelm, sponsored a transgender marriage bill in 2014.

One Nation policy is to let Australians decide the issue of marriage to “in a referendum, rather than a vote on the floor of Parliament.” If there is a parliamentary vote, its members/senators will have “a conscience vote” on the issue.

The Labor Party appears to be conflicted on the issue of transgender marriage. On the one hand, the 2011 Labor National Conference adopted a policy to “amend the Marriage Act to ensure equal access to marriage under statute for all adult couples irrespective of sex who have a mutual commitment to a shared life.” The ALP public campaign has been for same-sex marriage.

On the other hand, Labor Party members of Federal parliament – including the leader of the Opposition, Bill Shorten – have moved, or co-sponsored, four bills since 2015 in which marriage defined marriage as being between “two people.” In three of these bills, the Objects of the Bill is to be recognise marriage between couples to marry “regardless of sex, sexual orientation, gender identity or intersex status.” For example, see here.

Liberal and National Parties: Under Prime Minister Tony Abbott, the Liberal National Party Coalition government changed its policy from support for opposite-sex, heterosexual marriage to holding a plebiscite of all Australians to decide the definition of marriage. Under Prime Minister Malcolm Turnbull, the same policy has been maintained.

However, two members of the Liberal Party, Warren Entsch and Teresa Gambaro, co-sponsored a 2015 cross-party Bill for transgender marriage and six Liberal parliamentarians presented a transgender marriage bill to the Coalition joint party room in August 2017 (Amendment (Definition and Religious Freedoms) Bill 2017.)

6. Do Marriage Equality groups support transgender (gender fluid) marriage?

In early 2017, a Senate Select Committee inquired into the Exposure Draft of the Marriage Amendment (Same-Sex Marriage) Bill. The Federal government planned to put to the Bill to parliament in the event of a plebiscite vote supporting a redefinition of marriage.

Many submissions from same-sex marriage groups supported gender fluid (transgender) marriage.

Australian Human Rights Commission: “The Exposure Draft is the first bill released by the current Government to propose expanding the definition of marriage to include unions between two people, irrespective of their sex, sexual orientation, gender identity or intersex status.” (Submission 72, pg. 3. )

“The Commission considers that civil marriage should be available, without discrimination, to all couples, regardless of sex, sexual orientation, gender identity or intersex status …” (Submission 72, pg. 6)

The Law Council of Australia: Because the Bill’s title did not reflect the scope of the proposed legislation, the Council reported the Law Institute of Victoria’s recommendation to amend the title of the Bill by “replacing ‘same-sex marriage’ with a more inclusive term that would encompass intersex and transgender persons. Amended titles for the Exposure Draft could include ‘Marriage Amendment (Marriage Equality) Bill’, or ‘Marriage Amendment (Equal Marriage) Bill’, or ‘Marriage Amendment Bill.’” (Submission 74, pg. 13.)

Law Institute of Victoria (LIV):  A LIV representative told the Senate Hearings on the Exposure Draft Bill, “… the Law Institute welcomes the release of the exposure draft because it would amend the Marriage Act to allow for marriage between two people regardless of their sex, sexual orientation or gender identity.” (Hearings Transcripts, 23 January 2017)

Liberty Victoria said that although the amendments in the Draft Exposure Bill were “required to grant equality regardless of sex or gender identity,” using the term “same-sex marriage in the Bill’s title “ignores the experience of transgender and intersex people, for whom the legal status of ‘man’ or ‘woman’ can be problematic.” Accordingly, Liberty Victoria said it should be retitled the “marriage equality” bill. (Submission 22)

Austrliasn4Equality and Marriage Equality: “We strongly support the draft Bill’s change in the definition of marriage from being between ‘man and woman’ to ‘2 people’, which is inclusive of all LGBTI people and relationships.” (Submission 66)

In 2013, Alex Greenwich, National Convenor of Marriage Equality, responded publicly to complaints the Vice-President of Organisation Intersex International Australia Ltd, that “intersex, trans and gender diverse people” were being excluded from proposals only for same-sex marriage. Alex Greenwich responded saying, “Amendments to the federal marriage act to allow any two adults to marry (as was the amendments in NZ), would solve everyone’s problem.”

just.equal: “Most marriage equality legislation that has been proposed makes it clear that marriage is between two people regardless of sex, gender or sexual orientation. This helps ensure marriage equality is fully inclusive of transgender and intersex people. We believe the Marriage Amendment (Same-Sex Marriage) Bill should do the same.” (Submission 59)

Human Rights Law Centre: “We strongly support key aspects of the Draft Bill … [which] would allow all loving adult couples to marry regardless of their sexual orientation, gender identity or intersex status.” (Submission 77)

ACON, formerly AIDS Council of NSW: The Draft Bill’s change in the definition of marriage from ‘man and woman’ to ‘2 people’ ensures “that intersex, transgender and gender diverse people who are currently not able to marry under existing laws, will be able to do so.” (Submission 123)

Victorian Gay and Lesbian Rights Lobby: “…the VGLRL welcomes the change in definition of marriage from between ‘a man and a woman’ to ‘two people’. We believe inclusive language should be reflected throughout the bill. The title of the bill ‘Same-Sex Marriage’ excludes trans and gender diverse persons, and should be amended.” (Submission 34)

Victorian Equal Opportunity and Human Rights Commission: VEOHRC objected to the Exposure Draft Bill allowing civil celebrants to the right not to solemnise a marriage if it conflicted with their “conscientious” religious belief. VEOHRC said this would discriminate against couples who wanted to marry and be recognised “on the basis of their sexual orientation, sex or gender identity.” (Submission 70)

Brisbane Lesbian Gay Bisexual Transgender Intersex and Queer Action Group (BLAG): Regarding marriage between “2 people,” the group says: “this definition importantly includes transgender and intersex people…” (Submission 9)

Victorian Trades Hall Council: “We strongly endorse the proposal to alter the definition of marriage by removing a ‘man and a woman’ and replacing it with ‘2 people’. This change will embed the right of all LGBTIQ people to have their loving, committed relationships treated equally under Australian law.” (Submission 20)

Women’s Health Tasmania: The group complained that the Bill did not go far enough to explicitly include transgenders. “[T]he definition of marriage to ‘two people’ also fails to make it perfectly clear marriage will be recognised between two people regardless of sex, sexual orientation and/or gender identity.” (Submission 29)

New South Wales Parliamentary Working Group on Marriage Equality: “The inclusion of ‘2 people’ ensures that all relationships across the LGBTI spectrum, regardless of gender or sex, are treated equally under the law.” (Submission 30)

Equal Opportunity Tasmania: The group said the Bill “will remove a major obstacle to equality before the law for people in same-sex relationships and those of diverse gender identity.” (Submission 32)

Organisation Intersex International Australia Limited (“OII Australia”): OII welcomed the redefinition of marriage as between “2 people” because “[t]hese changes in language helpfully make no assumptions about legal, biological or individual concepts of sex or gender.” (Submission 8)

Rainbow Labor NSW: “We fully endorse and support the change to the definition of marriage from being between ‘man and woman’ to ‘2 people’. We believe that such a change recognises the right of adults to marry the person they love, and is inclusive of LGBTIQ people and their relationships.” (Submission 39)

PFLAG  NSW: “We …strongly support the draft Bill’s change in the definition of marriage from being between ‘a man and a woman to ‘2 people’, which is inclusive of all GLBTI people and relationships.” (Submission 43)

PFLAG told an earlier Inquiry into Same-Sex Marriage Law in NSW, “It is time for Australia to honour its human rights obligations under the International Covenant on Civil and Political Rights (ICCPR) so that marriage is recognized as a union of two people, regardless of their sex, sexual orientation or gender identity, to the exclusion of all others, voluntarily entered into for life.”

 

Gay and Lesbian Rights Lobby NSW: The Lobby welcomed “inclusive language in referring to ‘2 people’ and ‘spouse’ over the gender-specific terms of man, woman and husband. This language change is significant in recognising the many Australians who identify as intersex, trans or gender neutral, allowing all people regardless of their gender identity to have their relationships recognised.” (Submission 44)

Amnesty International: “Amnesty International Australia unequivocally opposes discrimination in civil marriage laws on the basis of sexual orientation, intersex status or gender identity.” (Submission 46)

Australian Lawyers for Human Rights: “… civil marriage and any services related to civil marriage should be available, without discrimination, to all couples, regardless of sex, sexual orientation or gender identity.” (Submission 51)

Castan Centre for Human Rights Law, Monash University: “… allowing marriage celebrants to discriminate on the basis of a person’s sexual orientation, gender identity or intersex status is a breach of human rights and should be removed from the Exposure Draft of the Marriage Amendment (Same-Sex Marriage) Bill.” (Submission 63)

Uniting Church LBTIQ Network Australia: “We assume the intention [of the draft Bill] is to make available to all Australians, regardless of sexual orientation, gender, gender identity or intersex status, the legal institution of marriage.” (Submission 64)

The Tasmanian Gay and Lesbian Rights Group: “Most marriage equality legislation that has been proposed makes it clear marriage is between two people regardless of sex, gender or sexual orientation. We believe the Marriage Amendment (Same-Sex Marriage) Bill should do the same. This is particularly the case given some couples where one partner is transgender or intersex may not fall within the definition of same sex or opposite sex.” (Submission 83)

The National LGBTI Health Alliance: “The National LGBTI Health Alliance strongly supports the changes of wording in the Exposure Draft definition of marriage from ‘man and woman’ to ‘two (2) people’. This change in language assists in the removal of assumptions about legal or biological sex and gender, will be more inclusive and will through the removal of barriers to equal access, improve the health and wellbeing of LGBTI people.” (Submission 89)

The Australian Psychological Society: The Draft Bill is “an important step towards achieving marriage equality and eliminating discrimination towards LGBTI communities within Australian society. We support the proposed change of the definition of marriage from being between ‘a man and a woman’ to ‘two people’ regardless of their gender…” (Submission 98)

The Northern Territory Anti-Discrimination Commission: “The exemptions as set out in the Bill to amend the Marriage Act 1961 …  will enshrine a differential approach to marriage for two people on the basis of their sex, sexual orientation, gender identity, intersex status etc.” (Submission 102)

National Association of Community Legal Centres: “…civil marriage should be available in Australia, without discrimination, to all couples, regardless of sex, sexual orientation or gender identity. As a result, NACLC supports the draft Bill to the extent that it amends the definition of marriage under the Marriage Act from being between a ‘man and woman’ to ‘two people.’” (Submission 108)

Victorian Government: “Amending the definition of marriage to include a union of ‘2 people’ is very welcome, as this includes couples of any gender and would promote the right to equality and non-discrimination… This will ensure that two people of any gender, including trans, gender diverse and intersex Australians, can marry.” (Submission 212)

Diversity Council Australia: “Although the title of Commonwealth Government’s exposure draft of the Marriage Amendment (Same- Sex Marriage) Bill refers to ‘same-sex’ marriage, in effect the Bill would provide for marriage equality because the definition of the Bill refers to ‘2 people’. As such, this paper refers to LGBTIQ+ couples.” (Submission 113)

The Anti-Discrimination Commission Queensland: “The right of lesbian, gay, bisexual, transgender, and intersex (LGBTI) couples to have their same-sex marriages recognised by the Commonwealth is soundly based in international human rights principles.” (Submission 124)

Rainbow Families: “We urge the Committee to… [s]trongly recommend that Parliament amend the Marriage Act 1961 (Cth) to extend marriage rights to all Australians, irrespective of gender or sexuality, revoking those legislative restrictions put in place in 2004.” (Submission 143)

City of Sydney: “…the City welcomes the change in the definition of marriage from being between a ‘man and a woman’ to being between ‘two people’ regardless of their gender. Even though the title of the Bill refers to ‘Same-Sex Marriage’, it is understood that this is inclusive of transgender and gender diverse people in the community. This is a necessary inclusion.” (Submission 132)

Conclusion: Many groups advocating to change the definition of marriage have been committed to transgender (gender fluid) marriage, while their public campaigns have been focused only on same-sex marriage.

There is a disjuncture between the media and parliamentary debates on same-sex marriage and the absence of significant debate on, and poor understanding of, many Bills and a plebiscite proposal for transgender (gender fluid) marriage.