A Sydney judge has thrown out a challenge to the federal same-sex marriage ban after ruling that it does not amount to gender discrimination.
Federal Court of Australia Justice Jayne Jagot ruled on Thursday, February 21 that the federal Marriage Act treated both genders equally since neither gay men nor lesbians enjoyed marriage rights.
“A man cannot enter into the state of marriage as defined with another man just as a woman cannot enter into the state of marriage with another woman. The redress for these circumstances lies in the political and not the legal arena,” Jagot wrote in her ruling.
“There cannot be discrimination by reason of the sex of a person because in all cases the treatment of the person of the opposite sex is the same.”
The ruling upholds the original decision of the Australian Human Rights Commission (AHRC), which dismissed an appeal by gay rights activist Simon Margan in July last year seeking to have same-sex marriage legalised in a number of states and territories on the basis that denying equal marriage amounted to gender discrimination against LGBTI people.
Margan, who brought the challenge before AHRC on behalf of 64 complainants in November 2010, said that while he was “dismayed” at the ruling he intended to appeal the findings in the High Court.
“This idea that same-sex marriage is a matter for legislation to rule on is very short-sighted. It’s a human rights issue that affects many people, and they have a legitimate legal avenue to try and ensure their rights are protected,” he told the Star Observer.
He argued that the ruling failed to take transgender and intersex couples into account, claiming that the logic behind the decision “doesn’t add up”.
“Banning gays and lesbians from marrying doesn’t solve the problem of gender discrimination faced by intersex and transgender people – that kind of attitude enforces a male/female stereotype that simply does not apply.”
Margan, a former co-convenor of Community Action on Homophobia, was assaulted by a 34-year old man on Oxford St in August 2010, prompting calls for greater education of police officers about homophobic attacks and the creation of a class of assault to deal specifically with gay hate crimes.