A proposed same-sex marriage bill under consideration in NSW Parliament may exclude trans and intersex people from getting married in the state.

The Star Observer understands that the parliamentary inquiry was advised by constitutional lawyers that NSW may not have the power to legislate for anything other than marriage between two people of the same sex. While a report released by the NSW Parliamentary Social Affairs Committee last Friday indicated that state Parliament may put forward same-sex marriage legislation, the proposed Same Sex Marriage Bill 2013 will not allow for marriages when a “person’s biological sex cannot be determined”.

As it stands, the bill will also neglect to correct the current legal trend of forcing married trans people to divorce their partner before receiving official documentation of their gender after they transition.

Organisation Intersex International Australia (OII) President Gina Wilson told the Star Observer the proposed bill was a same-sex marriage act rather than a true marriage equality act.

“I don’t see why state-based marriages are anything but another second-class hand-me-down,” Wilson said.

“It could be resolved by a state-based act by allowing people who have a gender or sex other than male and female to marry because the federal act only allows males and females to marry. Why this is proving difficult for state legislators to incorporate intersex is most likely because intersex is seen to be a bit too controversial.”

Community Action Against Homophobia (CAAH) quickly condemned what it said was the marginalisation of trans and intersex people.

“Our campaign has been for full equality for everyone, we don’t settle for concessions and we won’t stand for this transphobia and the invisibilising [sic] of intersex people,” CAAH co-convener Cat Rose said.

Labor MLC Penny Sharpe told the Star Observer that she and other members of the working group would seek further detail in coming weeks before any bill was introduced.

“The Cross Party Working Group is examining closely the Parliamentary Report and getting further advice,” she said. “We hope to be able to clarify the issues as soon as possible.”

Both Premier Barry O’Farrell and Opposition Leader John Robertson have given their personal support for potential state-based same-sex marriage laws and have indicated they will allow their respective parties a conscience vote should a bill be introduced.

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