Agender Submission on Same Sex Marriage

Agender NZ Submission on same sex couples, Marriages and the Law

John Penny, Rochelle Forrester & Truis Ormsby-Martin

We make this submission in support of allowing same-sex couples to marry, from the perspective of couples involving at least one transgender (transsexual) partner.

What are your views about same-sex couples being able to marry?

We respond to this question from two positions. Leaving the law as it currently is:

Creates a legal anomaly, complicated by whether a transsexual person's birth certificate represents their chosen gender; and
Is contrary to the nature of a truly democratic society

Legal anomaly

For some people, same-sex marriage is already legal, and conversely opposite-sex marriage is illegal. These people are transsexuals who have not met, or are unable to meet, the criteria for having their gender changed on their birth certificate.

The way the law is currently interpreted, a couple may legally marry only if the gender stated on their birth certificates are different. This creates the situation where people are treated differently under the law:

For most people, heterosexual marriage is legal, and homosexual marriage is illegal.
For many transgender people, homosexual marriage is legal, and heterosexual marriage is illegal. Transsexuals are free to live, work, form friendships and relationships in the nature of their chosen gender, and have their personal records show their chosen gender, (e.g. medical records, driver's licence, bank and insurance records etc.), but unless they have their birth certificate altered they must marry only as a member of the gender to which they no longer belong.

Consequently two people who live and work as women can be legally married (if one is a transsexual whose birth certificate still says that she is male) and two people who live and work as men can be married legally (if one is a transsexual whose birth certificate still states that he is female). It also means that a heterosexual couple cannot marry legally if the transsexual partner is not able to get his or her birth certificate altered to reflect their chosen gender. These three situations contradict the apparent intent of the current legislation.

Changing gender on a birth certificate

In order to have the gender changed on their birth certificate, a transsexual must undergo full sex change surgery. This results in three main barriers to having the birth certificate altered:

Health: The surgical procedures are considered to be major surgery. An ethical surgeon will not perform such surgery on any patient with certain medical conditions, such as moderate liver damage. Many conditions that prevent such surgery have little impact on day-to-day life, but they can raise the risk of undergoing such surgery to unacceptable levels.
Financial: Although the cost of sex change surgery varies, it is most particularly expensive for female-to-male transsexuals. Phalloplasty (the construction of a penis) by an experienced and reputable surgeon requires two treatments, overseas, a year apart. This generally costs no less than $50,000, which is an unachievable price for many people.
Jurisdiction: A transsexual New Zealander doesn't necessarily have a New Zealand birth certificate. Even if the person completes the requisite surgery, they may not necessarily have access to their birth certificate, or if they do, the nation who administers it may not give the legislative ability to change the gender on it.

Furthermore, there is no compulsion for a transsexual who is entitled to change their birth certificate to actually alter it. They can choose to leave it as is, especially if they are already married and wish to remain so.

Implications for unmarried transsexuals

If an unmarried transsexual cannot or does not have their birth certificate changed to reflect their chosen gender, this creates the following issues:

Their birth certificate doesn't represent their chosen gender. This can create embarrassing, or even legally compromising situations when travelling overseas on their passport (the gender stated on the passport is determined by the gender stated on the birth certificate). In New Zealand, the gender shown on the birth certificate and passport don't match other records about them. This can create administrative confusion and interaction problems when dealing with people who encounter this disparity.
Although the transsexual person is free to form relationships, they cannot marry those of the gender opposite their chosen gender. Their birth certificates show the couple to have the same gender, which would be an illegal marriage. This creates the anomaly that same-sex marriage is legal for these people, but opposite-sex marriage is illegal.
Transsexuals who wish to marry a person who is of the same gender as their chosen gender can do so, if they choose not to have their birth certificate altered. This has already happened in Great Britain.

Implications for married transsexuals

A number of transsexual people complete sex change surgery after marrying, and remain married. People in this category suffer these complications:

If they choose not to change their birth certificate, they endure the first of the same complications as the unmarried person. This also creates the anomaly that two people of the same gender have a legally recognised same-sex marriage.
If they wish to change their birth certificate, not only do they also have to overcome the same barriers as the unmarried transsexual, but by law they must divorce their spouse first, or they would otherwise be illegally married to them, as a person of (now) the same gender. Needless to say, most such married couples in this situation choose not to divorce.

Example

A transsexual person began life as male but now lives as female. She has the following options:

If she is unmarried, and cannot or does not change her birth certificate, she can only marry a women, as her birth certificate states that she is male. This may or may not match her sexual orientation. (She also must live with the anomalies of her birth certificate not showing her chosen gender.) This has already happened in Great Britain.
If she is unmarried, and changes her birth certificate, she can only marry men, as her birth certificate states that she is female. This may or may not match her sexual orientation.
If she was married before the sex change, and cannot or does not change her birth certificate, she lives as a woman legally married to another woman. (The couple also must live with the anomalies of living with the transsexual's birth certificate not showing her chosen gender.)
If she was married before the sex change, and wants to change her birth certificate, she must divorce her spouse. After the change of birth certificate, she cannot remarry her spouse, she can marry only men. This may or may not match her sexual orientation.

Democracy, human rights and the nature of marriage

We contend that same-sex marriage should be allowable on the following grounds:

It is contrary to the principles of a free-speaking democratic society, for one group to discriminate against another.
Marriage is a universal human activity, independent of culture, religion or nationality. The basis of the objections raised against same-sex marriage places one particular religious perspective above this ubiquitous expression of human behaviour.

Assumptions

In the context of this submission, we make the following assumptions:

Most people who are "offended" by the prospect of marriage between two people of the same sex, take this offence fundamentally on the basis of a religious or personal moral stance.
While New Zealand's law and social order is largely consistent with the main thrust of a Christian moral stance, the fundamental premises of that social order are not religious, but based on the logical necessities of all civilised society.

Same-sex marriage causing "offence"

The Law Commission states that allowing same-sex marriage "would cause unnecessary and understandable offence".

We infer from this statement that the Law Commission believes the following would not cause such offence:

Deliberately discriminating against a specified group of people,
Applying the same law differently to some people,
Being required by law to divorce one's spouse in order to live a normal life,
Not being able to marry the person who is one's chosen life partner.

If this is not precisely the case, then at least it is reasonable to infer that the Law Commission believes the above things cause less offence than same-sex marriage would cause.

Rebuttal of Law Commission's statement

The above statement displays a classic clash of personal values. In essence, one group claims a supposed "right" to deny another group their right to the same activities the first group carries out without restriction. This is, without doubt, discrimination. Even if the average New Zealander does find the concept of a same-sex marriage offensive, if it is a crime, it is unquestionably a "victimless" one.

The issue of same-sex marriage is parallel to the decriminalising of homosexuality. The New Zealand Parliament voted to decriminalise homosexuality, even though some people find homosexuality offensive. Similarly, some people might find the concept of same-sex marriage offensive; however this alone is insufficient reason to prevent others partaking in that personal life option, if that is their informed and considered choice. What applies to the one issue should necessarily apply to the other.

Key point: Right to choose without discrimination

As a society, the choice we face is not simply whether we will allow same-sex marriage, but whether we will:

Allow certain groups the power to impose their personal moral beliefs on groups of others; or
Allow individuals to make considered and informed decisions about their life choices, as long as they don't infringe on the rights of others.

It is our contention that offence on the part of some people is insufficient reason to impose limitations on the choice of others.

It is not illegal to be transsexual or homosexual. Therefore, what justification can there be for restricting the normal living activities of people who are committing no crime or infringement on others?

Furthermore, both these groups of people have protection under the Human Rights Legislation in their public lives. On what grounds therefore, is this protection from discrimination not extended to their private lives as well?

Universal nature of marriage

Marriage is a universal institution that exists (and has existed throughout recorded history) in some form, in all cultures and religions. This fact should give a clear indication of how important it is to the human psyche to formalise the selection of a mate.

Many opponents of same-sex marriage claim that the practice falls outside the Christian view of what constitutes a legitimate marriage. While marriage is an important institution within the Christian faiths, we must remember that it existed long before Christianity arose, and exists in all faiths and cultures, Christian or not.

Even if we accept that this is a genuine perspective of the Christian faiths, it realistically should have no bearing on the legal status of the issue in a democratic nation. It is nonsensical to base marriage law on the assumption that all citizens and residents of New Zealand follow the Christian ideal of what constitutes marriage, when we as a nation comprise a huge variety of religious views (including those who choose not to follow any religion, and those who reject all of them).

It is also a key point that in some contemporary cultures, same-sex marriage is as accepted an institution as opposite-sex marriage.

Key point: Marriage as a democratic right

Imposing the beliefs of one sector of society, religious or otherwise, on the whole of the society should not be a part of a modern nation that encourages and embraces personal freedom and expression. To allow this would be an affront to democracy.

Marriage in all its forms is intrinsic human behaviour. It is not up to one interest -group to define what does and does not qualify.

Religious and Secular Aspects of Marriage

However, having demonstrated that it goes against the principles of democracy for one religion to dictate the nature of marriage to the whole community, from a pragmatic perspective we must still recognise that many Christians feel very strongly about what should be considered to be a legitimate marriage. There are two aspects of marriage that must be separated from each other:

Being married in the eyes of the law
Being married in the eyes of the church

It is important to note that these do not have to be the same thing. In fact, they can be contradictory. For example:

Someone who is divorced can remarry legally, but some churches may rule that he or she is not married in the eyes of the church if his or her first spouse is still alive.
Men of some religions (such as Islam) may undertake a religious ceremony to marry a second wife (while still married to the first), and that marriage may be recognised by their religion, but it would not be recognised as a legal marriage under New Zealand law.

It is up to Parliament to determine who can be married in the eyes of the law. It is up to churches and other religious organisations to decide who is married in the eyes of the church. If Parliament decides that same-sex marriage is legal, religious organisations can quite legitimately state that they do not recognise those marriages. This does not create a contradiction that does not already exist.

Given that it is possible for Parliament and religious organisations to have different stances, there is no need to deny same-sex couples the right to marry in order to appease religious perspectives.

This leaves advantages all round:

Couples who enter into same-sex marriages will have them recognised by law.
Couples who enter into a same-sex marriage can have them recognised by their church if they join a church or other religious organisation which chooses to recognise same-sex marriages.
Religious organisations which do not believe that same-sex marriages are legitimate can chose not to recognise them, just as some do not currently recognise the remarriage of a divorced person, for example. All this can be achieved without denying same-sex couples access to the institution of marriage This avoids having discriminatory legislation that creates legal anomalies. Consequently it leaves the principles of democracy intact.

Basis of Marriage

In a pluralistic society such as New Zealand it is clear that marriage has different meanings to different people. But despite these differences, it is probably true to say that love and commitment are major principles which underpin the concept of marriage for most New Zealanders. Therefore, it is reasonable to assert that the social perspective of marriage in New Zealand is that it is founded on love and commitment. The legal perspective is quite different however. The factor which currently determines which 50% of the population one can legally marry is the gender specified on one's birth certificate. The gender specified on the birth certificate is determined by the shape of one's genitals (either the shape one was born with or the shape they were altered to later in life). Therefore it follows that one of the most important factors in determining whom one can legally marry in New Zealand is the shape of the genitals. As a country we must ask ourselves why it should be that genital structure is more important in determining marriage partners than love and commitment.

Conclusion

The current marriage law operates on the basis that a person has one gender, which can never change. Reality is considerably different, and other laws allow for this - as evidenced by the ability to change the gender on a birth certificate.

Taking the legally acceptable existence of transsexuals into account, the implications of allowing same-sex marriage to remain prohibited are as follows:

It would perpetuate the inconsistency in how the law is applied, when same-sex marriage is legal for some people, but illegal for others (and likewise for opposite-sex marriage).
It would allow the unacceptable situation to remain, where a married transsexual must divorce their spouse if they want their birth certificate to reflect their gender identity.
It would prohibit some people from participating in the universal human institution of marriage, which is an integral facet of human society, independent of culture or religion.
It would continue to devalue the institution of marriage by basing the legality or otherwise of marriage on genital structure.
The New Zealand government would be indicating its acceptance of discrimination against certain sectors of New Zealand society on the basis of personal values, and would be enshrining that acceptance of discrimination in law.
The New Zealand government would be indicating its acceptance of the imposition of religious beliefs of one sector of society, on the whole of the society.

Key Point: The Issue at Stake

Amongst all the heated and heart-felt opinion which is expressed on the matter of same-sex marriage, we must never lose sight of the fact that this issue is about more than just marriage. It is about the fundamental principals on which we base our democracy.

In analysing the validity of any opinions on this matter, we must always remember to place them in the context of a modern democratic and pluralistic society, and ask ourselves whether the opinions are compatible with our concepts of democracy and of freedom of expression.

If same-sex couples can't marry, what do you think about same-sex couples being able to formalise their relationship in some other way (e.g. registration)?

We do not support the registration of same-sex relationships for two reasons.

The first reason is that registration would leave the legal anomaly affecting transgendered people intact. This anomaly means that:

Transgendered people may be required to divorce against their will if they want their birth certificate to reflect their chosen gender.
Some transgendered people may legally enter into same-sex marriages and may not legally enter into opposite-sex marriage.

The second reason we oppose registration is because registration would mean that the appearance of discrimination would still remain. Even if registration grants the same rights and responsibilities as marriage, it is likely that registration would still be seen as second best. This would create or reinforce the perception of some people that transgendered people and homosexuals are not entitled to the same rights as those who are not transgendered and who are heterosexual.

The appearance of discrimination, even if it is not actual discrimination, is in itself dangerous and should not be tolerated in a democratic society. We believe that it is necessary to end both the fact of and the appearance of discrimination.

Therefore, we do not support the registration of same-sex relationships unless the right to marry is also granted.

How do you think registration should work?

We do not support registration unless:

The right to marry is granted to all couples, and
The right to register a relationship is granted to all couples.

In any other circumstances it will aid discrimination and therefore cannot work.

Do you think that same-sex couples should have the same rights as opposite-sex couples to jointly adopt children?

Yes. Decisions concerning the adoption of children should be based on the quality and parenting being offered, not on the gender of the parents.

In what circumstances do you think a same-sex couple ought to be able to have joint legal parent status?

In the same circumstances as apply to married opposite-sex couples.

What are your views about same-sex couples being able to be joint parents of a child born from an assisted human reproductive procedure that they both agree on?

Same-sex couples should be able to be joint parents of a child born from an assisted human reproductive procedure that they both agree on.

What is your opinion of a same-sex couple both having the right to parental leave if one of them gives birth or adopts a child?

Same-sex couples should have the same rights to parental leave as opposite-sex couples. The Parental Leave and Employment Protection Act 1987 should be amended to provide for this.

What are your views about same-sex and opposite-sex couples being assessed the same ways for Income Support purposes?

If same-sex couples are granted the same rights as opposite-sex couples (i.e. are granted the right to marry) then they should have the same responsibilities. If however, they are not granted the same rights then it is not acceptable to burden them with the same level of responsibility. In practice this means that:

If same-sex couples have the legal right to marry, then they should be treated the same way as opposite-sex couples when being assessed for Income Support purposes.
If same-sex couples are not given the right to marry, then this is an indication that the state does not recognise that same-sex relationships are of the same order as opposite sex relationships. If the state does not recognise that same-sex relationships are of the same order as opposite sex relationships, then those who are in same-sex relationships should be considered to be single when being assessed for Income Support purposes.

Rights and responsibilities must go hand in hand. If one is granted a right (e.g. the right to marry) then one must fulfil the obligations which go with it (e.g. supporting one's spouse financially). But the opposite must also apply. Why should someone be forced to fulfil an obligation (supporting one's partner) when one is not granted the right which goes with that responsibility (the right to marry that partner)?

For the State to insist on the enforcement of a responsibility without granting the commensurate right, goes against the principles of natural justice.

What are your views about same-sex and opposite-sex couples being assessed the same way for tax credit entitlements?

Same-sex couples should be assessed in the same way as opposite-sex couples if, and only if, they are granted the same rights as opposite sex couples. The principles are the same as outlined in the answer to the question about Income Support assessments above.

What are your views about same-sex couples being assessed in the same way as opposite sex couples when it comes to deciding whether people are eligible for legal aid?

What do you think about there being a law on dividing property when same-sex relationships break down?

Same-sex couples should be allowed to marry, therefore the Matrimonial Property Act 1976 would apply to them. The De Facto Relationships (Property) Bill should be amended so as to apply to same-sex couples.

What are your views on custody and access being changed to take account of same-sex relationships?

The law on custody and access should be changed to take account of same-sex relationships. There is no valid reason for discriminating against same-sex couples in this regard.

What is your opinion on the law being changed to recognise same-sex couples when a partner dies without a valid will?

The law should be changed to recognise same-sex couples when a partner dies without a valid will. There is no valid reason for discriminating against same-sex partners in this regard.

What is your view about same-sex partners being able to make claims against the estate of a dead partner who hasn't properly provided for them?

Same-sex partners should be able to make a claim against the estate of a dead partner on the same basis as opposite-sex partners can.

In your opinion, what areas of law need to be changed so that same-sex relationships are recognised in the way opposite-sex relationships are when a partner dies?

The three areas of law mentioned in your discussion paper (The Holidays Act 1981, The Coroner's Act 1988 and that involving jury service) should be amended so that same-sex relationships are treated the same as opposite-sex relationships when a partner dies.