Imagine being a transgender person, undergoing expensive and invasive gender affirmation surgery, and still being told you were unable to have your sex legally updated on your birth certificate unless you were willing to file divorce from your spouse. This is currently the situation for many Australians who are affected by archaic legislation in the Births, Deaths and Marriages Registration Act.

For decades, a significant portion of married transgender Australians have been forced to legally divorce their partners in order to have their sex legally affirmed on their birth certificates. Initially, the law’s purpose was to close a “loophole” to marriage equality (back when it was still illegal) — in that, if a trans person’s legal sex matched that of their spouse, they would technically be in a same-sex marriage. It’s a particularly cruel piece of legislation, which currently exists in all states and territories besides South Australia and the Australian Capital Territory.

While the legislation’s original purpose is obviously now obsolete, the law has yet to be updated to reflect this –- and might not be for up to 12 months. Late last year, as Australians celebrated the passing of same-sex marriage laws, a portion of the country’s queer community realised they were perhaps one of the only demographics left without true equality when it comes to marriage in Australia.

When the Marriage Amendment (Definition and Religious Freedoms) Act 2017 passed in December last year, with it came a repeal of the state and territory exemption in the Sex Discrimination Act — essentially, the legislation that allows states to uphold compulsory divorce for transgender Australians wanting to change their birth certificate. Ostensibly, this seems like great news for trans Australians as it means it will officially become unlawful to refuse a change of sex on one’s birth certificate based on their marital status.

There’s a catch, though: states and territories have been given 12 months to update their laws concerning compulsory divorce. As BuzzFeed’s Lane Sainty points out, this part of the legislation is not due to come into effect until December 9, 2018 — effectively meaning that trans people in certain states and territories could be waiting up to a year before action is made. This is particularly frustrating given that activists have been challenging the compulsory divorce laws for years. Perhaps the most high-profile figure to criticise the legislation has been federal Greens Senator Janet Rice, whose wife Penny Whetton is transgender and has been unable to change the sex on her birth certificate under Victorian law.

Last year, the United Nations Human Rights Committee became involved in the broader issue, finding in favour of a married transgender woman from New South Wales, identified only as G. The committee’s decision on the complaint claimed that the compulsory divorce laws breached international agreements regarding the right to privacy and family and the right to not be discriminated against on the basis of marital status and gender identity.

Now that same-sex marriage has become law in Australia, advocates have moved to ensure that transgender Australians are not forced to endure a full year before they achieve equality. Trans Health Australia, a group that describe themselves as a “transgender advocacy and peer support network”, has called on states and territories to move swiftly on updating legislation regarding married transgender people and legal recognition of their sex.

The group has penned a letter to every state and territory premier, chief minister, attorney general and opposition leader in Australia who currently have the compulsory divorce law in place, pleading for legislation to change sooner rather than later.

Written by the organisation’s Melody Moore and Zoey Campbell, the letter acknowledges the significant distress that has come to the trans community as a result of this legislation. The group points out that compulsory divorce requirements have “undermined our families and discriminated against transgender partners and parents by making them choose between their marriage or legal recognition of their identity”.

As the letter reads, “It is not fair or just that one small social group in Australia, the transgender community, should have to wait any longer than is absolutely necessary for the implementation of marriage equality and the acceptance of same-sex marriage created by amendment of birth certificates”.

The group also used the opportunity to target the legislation that requires transgender Australians to undergo surgical procedures in order to have their legal sex amended on official documents, claiming this is inconsistent with internal practices. As with the compulsory divorce laws, this legislation is no longer the case in SA or the ACT.

With the passing of same-sex marriage last year, thousands of Australians were finally granted the right to marry the person they love. However, it is difficult to concede that marriage equality has truly been achieved for the country’s queer community until transgender Australians are able to remain married to their partner and also have their sex legally recognised under the law.

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Peter Fray
Peter Fray
Editor-in-chief of Crikey
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