It appears evident the fundamental human rights principle of equality means that civil marriage ought to be available, without discrimination irrespective of sex, sexual orientation or gender identity.
Underneath the Marriage Act 1961 (Cth) (Marriage Act), marriage is described as ‘the union of a man as well as a woman’. This definition discriminates against same sex couples by refusing them the right to marry. Moreover, trans folks that happen to be married, aren’t able to amend their birth certificates to reflect their true gender identity and still remain married to their own partner.
There has been an increasing tendency for other nations to legislate for marriage equality as well as several international selections supporting same -sex marriage on the principle of equality. Reflecting this trend, the Commonwealth Parliament, and some state parliaments, are now contemplating legislation that would provide exactly the same access to all couples to civil marriage which is currently confined to opposite-sex couples.
The ICCPR contains the principles of equality and non-discrimination. The United Nations Human Rights Committee has concluded that the ICCPR doesn’t keep the recognition of same-sex marriage, rather the ICCPR does not impose a positive duty on states to do so.
In 2008, in response to Same Sex: Same Entitlements, the Commission’s 2007 report of the National Inquiry into Discrimination against People in Same Sex Relationships: Fiscal and Work-Related Entitlements and Advantages, the Commonwealth Parliament amended most Commonwealth laws to remove discrimination against same sex couples as well as their children. These reforms were an important step towards equality for individuals in same sex relationships. But, the Commission considers the Marriage Act proceeds to discriminate against same sex couples by expressly excluding them from the ability to have their relationship officially recognised under federal law. Removing the prohibition on civil marriage for same-sex couples is the following step toward legislative equality with opposite-gender couples.
Research shows that discrimination, social exclusion and homophobia experienced on the foundation of sex, their sexual orientation or gender identity contributes to negative health outcomes. Removing legislative discrimination to recognise marriage for all couples may help reduce the marginalisation experienced by these people, help promote greater acceptance within society and encourage better health results.
Sexual orientation and the principle of equality
The principle of equality requires that any proper relationship acknowledgement available to opposite-gender couples under law must also be accessible to same-sex couples. This consists of civil marriage.
Equality is a key human rights principle. It is set out in article 26 of the ICCPR, which states that all individuals ‘are equal before the law and are entitled with no discrimination to the equal protection of the law’. Article 2 of the ICCPR requires State Parties to ensure all people are to have the rights set out in the ICCPR without discrimination. Article 26 is broader than article 2(1) because it is a ‘standalone’ right which forbids discrimination in virtually any law as well as in almost any field regulated by public authorities, even if those laws usually do not relate to a right expressly mentioned in the ICCPR.
The right to equality before the law ensures equality with regard to the enforcement of regulations. The right to the equal protection of the law without discrimination is directed in the legislature and requires State Parties take action to protect against discrimination and to forbid discrimination.
Article 26 of the ICCPR doesn’t expressly mention ‘sexual orientation’ or ‘sexuality’ in the prohibited grounds of discrimination. However, the phrase ‘other status’ continues to be interpreted to include ‘sexual orientation’. The United Nations Human Rights Committee (Human Rights Committee) has emphasised the obligation on all parties to the ICCPR to supply ‘effective protection’ against discrimination predicated on sexual orientation.
Marriage and the principle of equality
In 1999, the Human Rights Committee has only considered the problem of same sex marriage once, to date. The authors claimed that the refusal of the capability to wed had ‘an actual adverse impact’ . The authors said they were excluded from full membership of society, their relationship was stigmatised and, unlike heterosexual couples, they did not possess the capability to choose whether or not to marry.
The Human Rights Committee found that ‘a mere refusal to provide for marriage between homosexual couples’ doesn’t break the State Party’s obligations under the ICCPR. This conclusion relied on a narrow consideration of the language in article 23(2) of the ICCPR which refers to ‘guys and women’ rather than the right to equality in article 26. It didn’t consider article 23(2) in light of the non-discrimination and equality rights in the ICCPR. Article 23(2) says that ‘[t]he right of men and women of marriageable age to marry and to found a family shall be recognized’. In Schalk and Kopf v Austria,the European Court of Human Rights came to an identical decision nevertheless found that ‘it’d no more consider the right to wed enshrined in Article 12 must in all circumstances be limited to union between two persons of the opposite gender’. Joslin and Schalk tend not to prevent the recognition of same-sex marriage, they only conclude that the ICCPR does not impose a positive duty on states to do so.