John Howard was given the option of adding extra words to his 2004 Marriage Act amendment that would have limited transgender people’s ability to marry by making eligibility based on gender at birth, but chose not to pursue it.
Cabinet papers from 2004, released by the National Archives, show the Howard government was advised it could go beyond the formal definition of marriage it ultimately enshrined in law, and stipulate that a couple must have been born male and female respectively to be allowed to marry.
The papers confirm the government’s decision to formally define marriage was driven by concern about new laws in the ACT allowing same-sex adoptions. It was also concerned about overseas same-sex marriages and anticipated pressure to recognise them in Australia.
The cabinet decided on 16 February to call for advice, and less than a fortnight later the attorney general’s department responded, highlighting that Western Australian and Tasmanian law also permitted same-sex adoption and raising possible ways to address this.
“A formal definition of marriage could be included in the Marriage Act,” the department proposed in a memorandum to cabinet on 27 February 2004. It advised that a specific provision could also be inserted that overseas same-sex marriages would not 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 position. However, the advice went further, suggesting the cabinet could also ringfence the institution of marriage from other perceived threats, including from transgender people.
“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 attorney general’s department memorandum advised.
The memo noted that the federal court had established a precedent for transgender marriage the previous year in a case known as Re Kevin by accepting the post-operative gender of someone who had undergone reassignment surgery. It suggested the Marriage Act could 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 department advised.
It cautioned about other implications, including that “any definition relying on biological characteristics at birth is likely to preclude intersex people from marrying”.
It warned that if cabinet agreed to the proposed change, any marriages involving transgender people between the time of the federal court ruling and the passage of the Marriage Act amendment would be considered lawful.
“The announcement of a proposal to introduce legislation may be an incentive for post-operative transsexuals to marry,” it said.
Further, the departmental memo advised that any such definitional change relating to gender at birth would need to be restricted to the Marriage Act, given the criminal law and social security already acknowledged transgender people.
It noted further potential “practical issues” to be overcome in relation to any reference to birth gender, including that all jurisdictions except Victoria allowed for a sex change to be registered and a new birth certificate issued.
“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 said. “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, cabinet resolved to legislate to define marriage as “the union of a man and a woman to the exclusion of all others, voluntarily entered into for life” without adding any reference to birth gender, and to state explicitly that same-sex marriages ratified overseas would not be recognised.
It also agreed to legislate, relying on the constitutional external affairs power, to not recognise overseas adoptions by same-sex couples, but did not proceed until three years later, after Australia’s first legal adoption by a gay couple occurred in WA in June 2007. The legislation did not pass before the Coalition lost government later that year.
Speaking in advance of the cabinet papers release, Howard said he could not recall the birth-gender proposal and did not seriously consider it.
“I had no intention at that time of doing other than inserting into the act the definition given by the [English courts],” Howard said.
In August 2004, Howard told a national marriage forum his proposal to define marriage in legislation was “an opportunity” that he hoped parliament would grasp within 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 said at 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 amendment was not stripping rights from anyone. A week later, the amendment passed with the Labor opposition’s support.
“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 said.
