JURIST Guest Columnist Elisabeth McDonald of the Victoria University of Wellington Faculty of Law evaluates the recent legalization of same-sex marriage by the New Zealand House of Representatives…

On Wednesday, April 17, 2013 New Zealand became the thirteenth country to allow same-sex couples to marry. Although a clear majority of the Members of Parliament supported the change, the public debate had been vitriolic and illogical at times. Therefore, it was important for the bill’s supporters to include in the law reform that occurred in other jurisdictions, where, in the words of the Honorable Maurice Williamson during the final reading: “The sun still [rises]…[t]eenage daughter[s] still argue back as if [they know] everything…[People] do not have…toads in their beds…. The world [has carried] on.”

What was not always apparent in discussions about the bill was that the proposed changes went further than most previous reforms. The New Zealand legislation, due to take effect on August 19, 2013, does not just provide that same-sex couples may marry. Section 5 of the act amended the interpretation section of the Marriage Act 1955 to read: “marriage means the union of two people, regardless of their sex, sexual orientation, or gender identity” (emphasis added). This definition is significant as it allows the marriage of any two people, without the need for either person to define themselves as either the same or different sex as their partner, or to be legally recognized as either male or female. The definition therefore will allow a transgender man (someone born with a female body who has a male gender identify) to legally marry a cisgender woman (someone born with a female body and a female gender identify) without having to first establish his legal sex. It allows a person who identifies as intersex (a general term used for a variety of conditions in which a person is born with a reproductive anatomy that does not seem to fit with the typical biological definitions of female or male) and whose birth certificate records their sex as indeterminate to marry any other person.

The significance of this change was not lost on some of the contributors to the debate. The importance of addressing discrimination against transgender and intersex communities was acknowledged. A Member of Parliament for the National (conservative) Party went further to address, for probably the first time in the debating chamber, the previous invisibility of intersex people:

As a former specialist obstetrician and gynecologist, extremely poignant experiences for me were the rare occurrences where at the birth of a baby, when the parents instinctively asked: “Is it a boy or a girl?” I had been literally unable to tell them. This has been because of ambiguous genitalia or a unique physical abnormality. It may take some weeks to fully assess a child, have genetic testing carried out, and assign a sex. Even that may be later changed. This illustrates the dramatic new knowledge available in the modern world to better understand the spectrum of physical, genetic, and social expression of gender and sexuality that was simply not possible in the past. I ask anyone, on either side of the debate, whether they would not hope that their newborn could be brought up in a society that is both tolerant and as caring about their child’s status and aspirations as any other child’s, a society that is inclusive, fair, and committed to respecting one another[.] In the first reading of this bill I said that despite trying hard, I could not construct a strong enough intellectual, moral, health, or even spiritual reason to vote against it. I am now quite convinced that, at the end of the day, the strength of any human union is about love, tolerance, giving, forgiving, sharing, inclusiveness, commitment, and fairness irrespective of gender. These are universal qualities that have no boundaries.”

The passing of this legislation is therefore part of the growing international recognition of the need to address the unique and previously ignored legal status of those who are members of transgender and intersex communities. The use of the words “gender identity” in the act acknowledges that reference to “sex” or “sexual orientation” in legislation does not sufficiently reflect the basis of difference that impacts on those communities and the discrimination visited on them. But there is much more work to be done. For example, there is still no reference to “gender identity” or “gender expression” in the Human Rights Act 1993.

A change that did take place in New Zealand in 2013 allows people to self-identify as M, F or X for the purposes of recording their gender on a passport application. There is no need to apply for a change to their birth certificate or even undertake any steps to live as the gender they identify as. There is also on-going work, particularly by one of the world’s first intersex advocates, Mani Bruce Mitchell, to challenge the historical medical practice of early surgery on intersex infants. This issue is also now being recognized internationally and a number of publications view the practice as a human rights violation.

The reform of the New Zealand Marriage Act was not only an important political statement for the gay, lesbian and bisexual communities, but it has also increased the visibility of transgender and intersex communities, as well as providing them with the ability to marry and the associated legal rights and responsibilities. For some members of these communities, the reform does not go far enough. It does not challenge the contemporary relevance of the traditional institution of marriage. It does not allow legal recognition of polyamorous relationships. It may well have exhausted all the social and political will for change which addresses inequitable treatment on the basis of sexual orientation or gender identity for a number of years. All these claims may well be true. However, this reform could also be the catalyst for more far-reaching change, even if only in the minds of those who prior to the passing of the Act had never even heard the word intersex.

Elisabeth McDonald is Associate Professor of Law at the Victoria University of Wellington in Wellington, New Zealand. An expert on feminist legal theory, evidence and criminal law, she has written extensively on the treatment of intersex and transgender people.

Suggested citation: Elisabeth McDonald, Beyond Same-Sex Marriage: Gender Identify in New Zealand, JURIST – Forum, May 8, 2013, http://jurist.org/forum/2013/05/elisabeth-mcdonald-samesex-marriage.php