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the end of this 12-month period, the existing exemption under sub-section 40(5) the Sex Discrimination Act 1984 will be repealed: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 Among other things, this law repealed the requirement in section 30A of the Births, Deaths and Marriages Registration Act 1996 that a person be unmarried in order to apply to alter their details on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.