Ending Forced Trans Divorce: Mission Half Accomplished

[NB This article is the second in a series looking at the ‘unfinished business’ of LGBTI equality in Australia]

 

This weekend marks six months since the passage of legislation that finally allowed lesbian, gay, bisexual, transgender and intersex people the right to marry under Australian law.

 

Well, most LGBTI people. Because it did not immediately overrule the laws of some Australian states and territories that prevent people who are married from changing their identity documentation to reflect their gender identity. In effect, making some trans and gender diverse people choose between the recognition of their relationship, and recognition of who they are.

 

Instead, the Marriage Amendment (Definition and Religious Freedoms) Act 2017 gave states and territories 12 months in which to update relevant legislation to provide married people with the same opportunity to update their birth certificates as unmarried people.

 

At the end of this 12-month period, the existing exemption under sub-section 40(5) the Sex Discrimination Act 1984 will be repealed:

 

Nothing in Division 2 renders it unlawful to refuse to make, issue or alter an official record of a person’s sex if a law of a State or Territory requires the refusal because the person is married.

 

So, half way to this deadline, how have the states and territories responded?

 

First, there are two jurisdictions that had already abolished forced trans divorce prior to the passage of the Marriage Amendment (Definition and Religious Freedoms) Act:

 

The Australian Capital Territory, where section 24(1) of the Births, Deaths and Marriages Registration Act 1997 does not make any distinction on the basis of whether a person is married or unmarried, and

 

South Australia, where sub-section 29I(3) of the Births, Deaths and Marriages Registration Act 1996 explicitly states that an application to change sex or gender identity ‘may be made under this section even if the person is married.’

 

There are two other states that have passed legislation in the past six months to repeal forced trans divorce:

 

Victoria, where Parliament approved the Justice Legislation Amendment (Access to Justice) Act 2018 on 22 May. Among other things, this law repealed the requirement in section 30A of the Births, Deaths and Marriages Registration Act 1996 that a person be unmarried in order to apply to alter their details on the register, and

 

New South Wales, which only last week passed the Miscellaneous Amendment (Marriages) Act 2018. Similar to the Victorian Act, this legislation removes the requirement in sub-section 32B(1)(c) of the Births, Deaths and Marriages Registration Act 1995 that a person be unmarried in order to apply to alter the register to record change of sex.

 

Which means that, half way to the December 2018 deadline, half of Australian jurisdictions have ended forced trans divorce. Mission half accomplished.

 

Of the other jurisdictions, only one has shown movement to abolish this out-dated and unjust law so far:

 

The Queensland Government has introduced the Births, Deaths and Marriages Amendment Bill 2018 into Parliament, which would remove the requirement in section 22 of the Births, Deaths and Marriages Registration Act 2003 that a person be unmarried for their sexual reassignment to be noted on the register. It has already been the subject of a Parliamentary inquiry, and will hopefully be passed shortly. [NB This legislation was passed on Wednesday 13 June 2018, ending forced trans divorce in Queensland.]

 

Which leaves three jurisdictions that still need to start the process of ending forced trans divorce:

 

Western Australia, where sub-section 15(3) and section 18 of the Gender Reassignment Act 2000 mean a person cannot access a recognition certificate, and therefore new birth certificate, if they are married.

 

Tasmania, where sub-section 28A(1)(c) of the Births, Deaths and Marriages Registration Act 1999 excludes married people from applying to register a change of sex, and

 

The Northern Territory, where sub-section 28B(1)(c) of the Births, Deaths and Marriages Registration Act has the same effect.

 

This post will be progressively updated to reflect (hopefully) developments in Western Australia, Tasmania and the Northern Territory.

 

The good news is that, even if those jurisdictions fail to take action, the Commonwealth Sex Discrimination Act will eventually overrule these provisions, thereby allowing trans and gender diverse people who are already married to apply to update their identity documentation.

 

However, it will be much simpler if these jurisdictions take pro-active steps to update their laws before then. It is also a symbolically important step, so that provisions that have had such a negative impact on trans and gender diverse Australians for so long are wiped from the statute books entirely.

 

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Submission re Queensland Births, Deaths and Marriages Registration Amendment Bill 2018

The Queensland Government has introduced legislation to finally abolish ‘forced trans divorce’ in that state. The following is my submission to the Parliamentary Committee which is considering this Bill. More details about this inquiry can be found here.

 

Committee Secretary

Legal Affairs and Community Safety Committee

Parliament House

George Street

Brisbane QLD 4000

lacsc@parliament.qld.gov.au

 

Sunday 18 March 2018

 

Dear Committee

 

Births, Deaths and Marriages Registration Amendment Bill 2018

 

Thank you for the opportunity to provide a submission in relation to the Births, Deaths and Marriages Registration Amendment Bill 2018.

 

In short, I strongly support this legislation. As noted by Attorney-General, the Hon Yvette D’Ath, in her second reading speech, the Bill ‘makes an important and necessary amendment to ensure true marriage equality is realised for sex and gender diverse Queenslanders.’

 

The existing provisions of the Births, Deaths and Marriages Registration Act 2003, which require that married transgender people must divorce their spouses before they are able to have the reassignment of their sex noted on the birth register, are a gross violation of human rights.

 

Forced trans divorce does not respect the right to personal autonomy and self-determination of trans and gender diverse people.

 

Forced trans divorce also does not respect the ability of all people to choose who they marry, and then to decide between themselves whether they remain married – rather than having that decision made for them by government.

 

Forced trans divorce is in direct contravention of Article 26 of the International Covenant on Civil and Political Rights which provides that:

 

All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

 

The amendments proposed in this Bill will help address these human rights breaches. If passed, it will ensure that nobody is left in the impossible situation of having to choose between staying married to the person they love and being able to access identity documentation that reflects their gender identity.

 

I therefore urge the Legal Affairs and Community Safety Committee to recommend the passage of the Births, Deaths and Marriages Registration Amendment Bill 2018 and for all members of Queensland Parliament to act on that recommendation.

 

Before I conclude this submission I would also note that forced trans divorce is not the only aspect of the Births, Deaths and Marriages Registration Act 2003 which breaches the human rights of trans and gender diverse people in Queensland.

 

In particular, their right to personal autonomy and self-determination is violated in three key ways:

 

  1. The requirement that people must have ‘sexual reassignment surgery’[i] before being able to update their sex on the birth register. This is inappropriate as not all transgender people want or are able to undertake such procedures (for a variety or reasons, including financial).

 

  1. The requirement that applications to note the reassignment of a person’s sex ‘must be accompanied by statutory declarations, by 2 doctors, verifying that the person the subject of the application has undergone sexual reassignment surgery’ [section 23(4)(b)]. The medicalisation of identity recognition processes is also inappropriate – doctors should not be ‘gatekeepers’ of the identity of trans and gender diverse people.

 

  1. The requirement that sex be marked as either male or female on the register. This binary categorisation does not recognise the diversity of sex and gender which exists in the community, and therefore imposes inaccurate identity documentation on some people.

 

I note that in her second reading speech Ms D’Ath stated that:

 

The Palaszczuk government is strongly committed to ensuring our laws support the rights of sex and gender diverse Queenslanders. The focus of the first public discussion paper for the recently commenced review of the BDMR Act is examining how Queensland life event registration services can improve legal recognition of lesbian, gay, bisexual, transgender and intersex Queenslanders and their families. I encourage all Queenslanders to access the discussion paper on the Get Involved website and have their say.

 

[NB The Registering life events: Recognising sex and gender diversity and same-sex families Discussion Paper can be found here. Submissions are due by 4 April.]

 

I look forward to the three human rights violations identified above being addressed through that process. However, I believe it is important they are highlighted here because, while the Births, Deaths and Marriages Registration Amendment Bill 2018 is an important step forward, it is by no means the end of the journey towards the full recognition and acceptance of trans and gender diverse Queenslanders.

 

If you would like additional information, or to clarify any of the above, please do not hesitate to contact me.

 

Sincerely

Alastair Lawrie

 

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Queensland Attorney-General, the Hon Yvette D’Ath MP.

 

 

Footnotes:

[i] Defined in the Act as:

‘means a surgical procedure involving the alteration of a person’s reproductive organs carried out:

(a) to help the person to be considered a member of the opposite sex; or

(b) to correct or eliminate ambiguities about the sex of the person.’