Equality advocates have urged Australia’s state governments to repeal laws forcing married transgender partners to divorce if they want their birth certificate to reflect their gender identity.

The call comes in the wake of a landmark UN decision upholding the right of a transgender Australian to remain married under federal law and have her NSW birth certificate amended.

The case involved a NSW woman who began her transition via hormone therapy in the year 2000, she subsequently changed her name two years later, and had gender affirmation surgery in 2005. The same year she married a woman, but was unable to get her name gender changed on her birth certificate.

In order to change the sex on a birth certificate in NSW, a person must be over 18, have had their birth registered in NSW, undergone gender affirmation surgery and be unmarried. Her request was denied because of her martial status.

The UN committee has ruled that there is no reason for the woman’s birth certificate not to be changed and highlighted the inconsistencies within the Australian laws.

Just.equal spokesperson and long-time marriage equality advocate, Rodney Croome, said state governments should immediately repeal their current laws that force transgender people to get a divorce.

“State and territory governments should immediately repeal their laws forcing married couples to divorce if these governments wish to be seen as respecting Australia’s human rights obligations.”

“As the UN has pointed out, it makes no sense for Australia to issue passports that reflect true gender identity but not issue birth certificates in the same circumstances without the onerous pre-requisite of divorce.”

“It is cruel to make transgender partners choose between their gender identity and their solemn vows of lifelong commitment.”

Croome dismissed concerns from the NSW and federal governments that repeal of forced divorce laws would create an unacceptable conflict with the federal Marriage Act which does not allow same-sex couples to marry.

“The ACT and South Australia have both repealed their transgender forced divorce laws without the sky falling in.”

NSW, Victoria, Tasmania, Western Australia, Queensland and the Northern Territory all require married partners to divorce if one partner transitions and wants their true gender identity reflected on their birth certificate.

While Australia has ratified the United Nations the International Covenant on Civil and Political Rights the federal government is under no obligation to act on the recommendations. They must however formally respond to the ruling.

NSW Attorney General Mark Speakman told Buzzfeed News that even if the state allowed the woman to change her birth certificate her marriage would still be declared void because of the nation’s marriage laws.

“The effect for a married person of amending the sex recorded on the register from that recorded at birth, and the subsequent issuing of a new birth certificate, may be the marriage itself being voided,” Speakman said.

OIP Staff