How does Australian law consider a marriage in which one person has subsequently transitioned? In Australia: Same sex marriage is not currently legal. This extends even to same sex marriages from other countries, which "must not be recognised as a marriage in Australia". At both the federal and state levels, there is broad support for officially changing your gender. There is case law affirming the marriage of a transman and a woman as valid. But how does Australia law consider a marriage between two persons, who at the time of their marriage were officially identified as a man and a woman, but subsequently one of whom transitioned? If they officially change their gender, and so are considered by law to be that new gender, is their marriage, which is now effectively a same sex marriage, still considered a valid marriage? Or, in the states with civil unions, would the couple now be considered only to be in a civil union rather than a marriage? (And for the states without civil unions, would they be considered to be in only a de facto relationship?)
There is a report about a male-to-female transgender woman here: http://www.abc.net.au/radionational/programs/lawreport/2017-06-27/8651398#transcript She managed to do the following: 1. While legally being a male, she got a preliminary passport as a woman so she could travel to Thailand, have an operation, and not run into trouble returning with a male passport and a female body. 2. While legally still being male, but with a female body, she married a woman in Australia. That was fine because legally she was male. 3. She has received a passport as a female. 4. She was refused a change of her birth certificate as long as she is married. So the current state is: She is (in fact, biologically) a woman. She is married to a woman in Australia. That marriage is perfectly legal, however, it is officially a marriage between a man and a woman. She has a woman's passport. The Australian government cannot and doesn't want to do anything to make her marriage illegal. BUT she cannot change her birth certificate without getting divorced first, and if she got divorced and changed her birth certificate, she couldn't remarry the same woman, or any other woman.
The various news stories are somewhat unclear about what this bill actually does, so let us look at the text of the bill. The bill would (in addition to other changes not specifically connected with sexual identity or orientation) create section 1001.42 (8)(c)(3), reading: A school district may not encourage classroom discussion about sexual orientation or gender identity in primary grade levels or in a manner that is not age-appropriate or developmentally appropriate for students. Exactly what it means for &quot;A school district&quot; to &quot;encourage classroom discussion&quot; is less than clear. If such discussion is not on the syllabus, nor suggested by the administration, but a teacher starts it, would this law ban it? Note that no penalty is specified for violation, although parental suits against a school district are authorized by the new subsaection 1001.42 (8)(c)(4). On its face the bill appears to prohibit the district from &quot;encouraging&quot; any such discussion in the primary grades (K-3 it seems), and from encouraging it if such discussion is not &quot;age-appropriate&quot; in other grades. As to the question of whether this bill, if it becomes law (as seems likely) would violate anyone's constitutional rights, that is a bit tricky. Teachers and students both have First Admendment rights even during school (see Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969) for the key case) but this bill does not purport to prohibit a teacher from making any particular statement. The state does have considerable authority to regulate the curriculum of schools, particularly public schools, and what shall occur there. How this provision would be enforced, and what sort of speech, if any, was actually prohibited under it would probably be important in any lawsuit over its constitutionality. A law that prohibited any mention of sexual identity in school would probably be unconstitutional, but this bill does not claim to do that. If it does that in practice, that would probably weigh against it.
The cited provision is: A person has the protected characteristic of gender reassignment if the person is proposing to undergo, is undergoing or has undergone a process (or part of a process) for the purpose of reassigning the person's sex by changing physiological or other attributes of sex. This language originates in the Sex Discrimination (Gender Reassignment) Regulations 1999. This statutory instrument was made in response to a 1996 decision of the European Court of Justice (P v S and Cornwall County Council, C-13/94) that Council Directive 76/207/EEC of 9 February 1976 , regarding equal treatment of men and women, also covered discrimination on the grounds of gender reassignment. The regulations were made in order to bring domestic law up to date with the EU requirement, by amending the Sex Discrimination Act 1975. The definition at the time, found in the amended section 82, was: &quot;gender reassignment&quot; means a process which is undertaken under medical supervision for the purpose of reassigning a person’s sex by changing physiological or other characteristics of sex, and includes any part of such a process So the idea of &quot;other characteristics&quot; or &quot;other attributes&quot; comes from the 1999 version of the law. I expect that the change to &quot;attributes&quot; is simply because the Equality Act 2010 uses the term &quot;characteristic&quot; to mean something else, as it consolidates many different regimes about discrimination on the basis of sex, race, disability, etc., all of which are called &quot;characteristics&quot;. The more recent text removes the part about &quot;medical supervision&quot;, and explicitly includes people at any stage of transition. Explanatory Notes to the 2010 Act give the example: A person who was born physically female decides to spend the rest of her life as a man. He starts and continues to live as a man. He decides not to seek medical advice as he successfully ‘passes’ as a man without the need for any medical intervention. He would have the protected characteristic of gender reassignment for the purposes of the Act. (These notes are not binding in law but they do give a good idea of what the drafters meant to say. The concept of 'passes' is also not the most sensitive language to bring in, since trans people do not necessarily want to measure themselves by their ability to pass undetected, and may present differently in different contexts.) The example shows that someone can have the protected characteristic without having, or contemplating, any change to their body. So from this example, the other attributes of sex would include all those ways in which the man &quot;continues to live as a man&quot;. From general knowledge of trans men, that could include using a masculine name and pronouns; wearing traditionally-male clothes; wearing a binder, baggy clothing, padding in the crotch, or other ways to suggest a more masculine than feminine body; having a traditionally-male haircut; using traditionally-masculine body language; pitching the voice lower; and so on. The situation for trans women would be parallel. These things are all attributes of sex, in that our society abounds in stereotypes of what is a &quot;manly handshake&quot;, or a &quot;girly drink&quot;, or otherwise associated with a particular sex. They are to do with behaviour more than the body.
No, and certainly not for the reason implied (essentially a one spouse per jurisdiction in which one has citizenship rule which doesn't exist anywhere). At least under the law of every U.S. jurisdiction, you cannot be married to more than one person at the same time (anywhere in the world), and it is a crime to do so. Several dozen countries in the world recognize polygamy as legal (mostly in predominantly Muslim countries, not all of which allow polygamy, and in Africa where pre-Christian custom permits it), of course, and this does not violate the laws of those jurisdictions. The U.K. does not generally permit polygamy, but gives some recognition to and does not criminalize, polygamous marriages entered into in a place where it is lawful. But the concept proposed in the question would still not be legal under U.K. law. UPDATE: A California court ruling concurs with this analysis.
Yes The only accurate thing in the linked article is: &quot;I am not a Constitutional lawyer.&quot; That could be taken further into &quot;I have no real idea how our legal and political systems work.&quot; One of the tasks of the Massachusetts Supreme Judicial Court is to interpret the laws of Massachusetts including the Massachusetts Constitution. In Goodridge v. Department of Public Health the court decided that the Constitution provided for equal protection and due process and that if the state wished to discriminate against people on the basis of sex they needed a good reason. The reasons the state put forward were: providing a 'favorable setting for procreation'; ensuring the optimal setting for child rearing, which the department defines as 'a two-parent family with one parent of each sex'; and preserving scarce State and private financial resources. On 1. the court said marriage is irrelevant for procreation and vice-versa. On 2. they said Massachusetts law on child welfare dealt with the &quot;best interests of the child&quot; and that it is not in those interests for the state to deprive the child of benefits because it doesn't like the sexual orientation of the parents. On 3. they said equal protection means equal protection. In a common law legal system like Massachusetts where courts have the power to strike down legislation then that takes effect as soon as the decision is published. The law ceases to exist without the legislature or the executive doing anything. Now, the people of Massachusetts are free to amend their constitution to outlaw same-sex marriage or remove equal protection rights if they want. However, at the time and subsequently, the majority don't want.
If Tratatoria has anti-discrimination laws, or provisions in its constitution forbidding discrimination, the Minister's actions might be illegal under them. But if it does not, or if it does not enforce whatever laws it may have, there is no international authority that can enforce any rule against discrimination. People and groups in other countries could denounce such actions as biased and discriminatory, if they chose. There is no legal standard for such announcements. This might bring pressure on Tratatoria. But that would be a diplomatic and political matter, not a legal one. There really is no effective international law on discrimination unless it amounts to genocide, and even then it is essentially a matter of diplomatic pressure or potentially war to enforce regime change, not a true legal process.
There are two ways to change a constitution: Through amendments to the current constitution. By starting a new constitution. When you start a new constitutional process from scratch, its legitimacy will not depend on the provisions of the old constitution. This process will develop outside the framework established by existing laws. You could say that the constitution is self-affirming: its legitimacy cannot come from any law because there are no laws higher than the constitution. From that point on everything could be (theoretically) possible as a way to legitimate the new constitution: a referendum (in the multiple varieties that it could be present), approval by an assembly, military intervention... The success or not of a new constitution would depend on the forces that support and oppose it.
For a contract (including ToS) to be valid, one of the things it must have is "legality of objects". That is, if the contract purports to require anything that is unlawful in the jurisdiction then (barring a severance clause) it is not a contract. In common law countries, the starting point is that people are free to contract for and about anything they like - a contract is simply a mechanism for exchanging value between the parties on whatever terms they wish. However, judges and legislatures have decided that there are some things you cannot trade and some terms that are unconscionable or against the public interest and these vary from jurisdiction to jurisdiction*. For example, a contract is not legal in any jurisdiction if its terms seek to exclude the intervention of the courts - this is against public policy. So for example, a binding arbitration clause requiring the parties to accept a private arbitrator's decision as final excludes the courts, yes? Well, in Australia, yes, such clauses if used in a contract between parties with different bargaining power (like a Telco and its customers) are invalid because they prevent the weaker party pursuing a class action. However, they are perfectly legal in the United States because the SCOTUS has determined that the customer can persue litigation after arbitration is finished so this doesn't impede the courts. These are essentially the same laws interpreted by the courts so that they have totally opposite effects. So this might lead you to think that you'll put one in - it'll be OK in the US and Australians will represent such a tiny share of your market that you don't care if I can't enforce my ToS there. Except, if your website is visible by Australians, you have just exposed yourself to a government fine of up to AUD 5,000,000 (say USD 3,000,000) per day for breach of Australian Consumer Law. As a general guide (which is very stereotypical), US jurisdictions are the most permissive in the rights they will allow their citizens to give up: the US attitude is that everyone is free to make the best deal they can. European jurisdictions are the least permissive in this regard: most European countries follow a more social welfare state model and the citizen needs protecting from themselves. Commonwealth countries tend to be more in the middle.