The Australian Human Rights Commission considers that the fundamental human rights principle of equality means that civil marriage should be available, without discrimination, to all couples, regardless of sex, sexual orientation or gender identity.

Under the Marriage Act 1961 (Cth) (Marriage Act), marriage is defined as ‘the union of a man and a woman’.1 This definition discriminates against same-sex couples by denying them the right to marry. In addition, trans people who are already married, are not able to amend their birth certificates to reflect their true gender identity and still remain married to their spouse.2 Since the enactment of the Marriage Act, the world has changed.

There has been an increasing trend for other countries to legislate for marriage equality and a number of international decisions supporting same-sex marriage on the principle of equality. Reflecting this trend, the Commonwealth Parliament, and some state parliaments, are now considering legislation that would provide all couples with the same access to civil marriage that is currently confined to opposite-sex couples.