By Peter Hyndal
As a transman, I have some reservations about the time and energy that we, as a queer community are putting into the current marriage debate.
My primary reservation is that there are so many much more pressing law reform issues that affect the LGBTIQ community that are not being dealt with at all because priority has been given to the marriage issue. From a human rights perspective, I would argue that the top three most urgent issues facing the LGBTIQ community are the legislative requirement for sterilisation of trans people as a condition for gender recognition, the refusal of governments to adequately deal with issues of intersex surgery on infants and children, and the incredibly high rates of discrimination and victimisation of sex and gender diverse people in our community.
My secondary reservation stems from the fact that trans and intersex people are constantly called upon to actively support essentially gay and lesbian causes, while the gay and lesbian community has an awfully long history of refusing to acknowledge or supporting trans and intersex issues. It is this blindness to trans and intersex issues that I particularly want to address – because as I see it, this blindness is not only intensely frustrating for trans and intersex people – it is also potentially damaging for the marriage campaign itself.
To get right back to basics, what is at the heart of the marriage issue is that the commonwealth marriage act defines marriage as being between a “man” and a “woman”.
The entire marriage debate has, to date, been waged on the basis of who should and who should not have access to marriage. And when I say “the entire debate” I mean that both we, and those who oppose us, are engaged in dialogue ONLY about whether people in same sex relationships should be able to access marriage in the same way as people in heterosexual relationships.
In other words, we have ALL engaged with this debate on the basis that it is a debate that is ACTUALLY ABOUT sexuality.
Although I agree that there are very sound human rights based arguments about why same-sex relationships should be recognised by the state in exactly the same way as heterosexual relationships, I do not agree that this is the only, nor even the most powerful, debate to be engaged in.
When we frame the debate only in terms of sexuality, we don’t question whether its true that marriage currently only occurs between men and women. Nor do we question whether the definition of marriage or of men or of women is problematic. By not raising these issues, the ONLY sphere we allow our own debate to occur is in the context of us having to justify why a change should be made. We set the argument up so that those who oppose us don’t actually have to argue for anything – except the continuation of the status quo.
But if we frame the debate in terms of gender then there are legitimate and destabilising questions that we could be asking – questions that those who oppose us would actually need to respond to and questions that I think, they would find very difficult to answer.
My experience of marriage right now, in this country is that IT IS NOT something that only happens between a man and a woman – There are many trans women who remain legally married to their wives. And there are transmen who can legally marry other men. And there are many people who are unable to marry either a man or a woman because for a whole range of reasons it is unclear whether they themselves are men or women.
It is very clear to me that the marriage debate is one where it makes much more sense to engage with the debate on the basis on GENDER and NOT on the basis of sexuality.
What the marriage Act doesn’t define – and nor does any other legislative instrument in this country at a Commonwealth, State or Territory level – is what a man or a woman actually is.
And the reason that these terms are not defined in legislation is that there is so much variation in the natural biology and social context of the human experience that it is completely impossible to define categorically what a man or a woman actually is.
The biggest issue facing trans and intersex people in Australia at the moment is about identity recognition – the fact that there is NO CONSISTENCY in the way that governments recognise a persons sex – that the same person will be legally recognised as male by some government agencies while being legally recognised as female by other government agencies.
So I think the biggest question about marriage is quite simple: “How can a government on one hand maintain that marriage can only be between a man and a woman if that same government is unable to consistently articulate what a man or a woman even is?”
In the ACT there is also second important question: “How can the ACT Government maintain that it is serious about the importance of legal recognition – when although they seem desperate to legally recognise my relationships, they refuse to legally recognise the very essence of my individual identity as a man?”
So as activists, let’s start to scratch just a little below the surface. Let’s start to demand a little bit more of those people who claim to be our allies. Let’s REFUSE TO just accept THE MYTH that marriage is, or ever can be effectively restricted to unions between “a man and a woman”.
Let’s start shifting the discussion to HOW we want the legal definition of marriage to be changed, rather than WHETHER it should be changed at all. And let’s remember that all we need to do to achieve this shift is to engage with the marriage debate on the basis of gender rather than sexuality.
To do these things is to shift the marriage debate to an arena where we CAN win – because we shift the debate to an arena where our argument is evidenced not by us arguing on moral concepts like human rights and social justice and equity but where our argument is evidenced by the natural and undeniable diversity of sex and gender that always has and always will exist in our society.