This post first appeared in VICE Australia
State laws across Australia specify that a married person who undergoes gender transition cannot register a change of sex on their birth certificate. This leaves the individual with the choice between either divorcing their partner or having one of their primary sources of identification stating that they are different from how they present. The decision to transition can be challenging, but this makes matters more difficult for a number of reasons.
These state laws are lagging behind the more enlightened federal law of Australia, which allows transgender people to change their genders on their passport with relative ease. The Rudd government implemented these changes to procedures surrounding the other primary source of identification in the country in 2011 in response to difficulties being encountered by transgender people traveling overseas.
In October, several Greens MPs introduced bills into the state parliaments of South Australia (SA), New South Wales (NSW), and Tasmania, proposing to amend the legislation regarding married people who transition. They claim that although the Howard government amended the Australian Marriage Act in 2004 to ensure that marriage can only occur between a man and a woman, the act does not specify what can happen after a couple enters into lawful wedlock. And further, if an individual has undergone gender transition, their sex has changed regardless of what is recorded on the register and therefore the register should be updated to reflect this.
Zoey Campbell is a 56-year-old transgender woman living in South Australia who transitioned two years ago. Being married, she did not try to register her change of sex with the Births, Deaths, and Marriages office, as she understood it was not possible unless she got a divorce. And this is the case for others in similar situations.
"I can't see why such a piece of law should exist. For most people in our society it's a fundamentally accepted thing that state and federal governments should leave marriage and family alone. They should support marriage. Marriage and family are a fundamental human right that you don't unduly interfere with," Campbell said. "And that's not the case for trans people."
Having to go through life with a birth certificate that doesn't reflect how you look can result in difficulties, according to Campbell. At best it can cause confusion, but it can also open the door to a lack of understanding and lead to discrimination. Basic everyday matters, such as getting a mortgage, can prove extremely challenging to a person if their primary identity document doesn't match how they appear.
Melody Moore, coordinator of Trans Health Australia, said she understands the situation all too well. Although she had divorced before she transitioned, when she wanted to register her change of sex she had to present her divorce papers. She points out that if a married person who transitions does not want to get a divorce, then other areas of their life can become uncertain.
"Because a lot of their other identity has changed, there's a level of ambiguity that starts to affect things with respect to legal issues, when it comes to settlements, contracts, agreements, or partnerships and so on," Moore said.
For two years, Moore has been leading a campaign against the "draconian" SA Sexual Reassignment Act of 1988, which among other things specifies that married people who transition cannot register their change of sex. Last month, SA Greens MP Tammy Franks introduced a bill before parliament to repeal the act, which she believes is part of a nationwide push to halt "forced divorce."
"Forcing a person to choose between recognition of the person they are and recognition of their relationship with the one they love is a cruel approach," Franks said. "I've heard from people who have chosen to stay married rather than receive 'recognition' by the state. Hopefully we can change this law so those happily married couples can stay married, while their individual identity is also being recognized."
Katherine Cummings, an information worker at the Gender Centre in Sydney, said that the situation leads to happily married couples having to perjure themselves and say their marriage has broken down so that one of them can seek proper legal identification. Having transitioned in 1986, Cummings was meeting with advisors to politicians in the late 80s advocating for married people to be allowed to change their birth certificates. But the people she spoke to were worried it was "the thin end of the wedge as far as same-sex marriage was concerned."
"Obviously that was something they weren't even prepared to think about in those days. So I would say that we're still stuck with the religious overtones of marriage. We're pretending that it's still a supernatural endorsement rather than a civil contract," Cummings said. "It's a legal contract, and if it is a legal contract, then there is no reason why the terms of those contracts should not be revised within law."
Recently, Independent MP for Sydney Alex Greenwich and Greens MP Mehreen Faruqi jointly introduced the Change of Sex amendment bill to the NSW parliament. Greenwich in his introductory speech underscored the need for other transgender law reform within the country.
One such piece of legislation was passed earlier this year in the Australian Capital Territory that removed the requirement to undergo sexual reassignment surgery to register a change of sex on a person's birth certificate. But as Paige Phoenix knows, this is not the case in Victoria.
Phoenix is a transgender man who transitioned seven years ago. He legally married his fiancee in 2011 using his passport as identification, as the federal law allowed him to change his sex after having hormone treatment and chest surgery. However he was told his marriage had been annulled after a cross-check at the Victorian Birth, Deaths, and Marriages office found he was registered as a woman on his birth certificate. Under the state's law, a person cannot register a change of sex unless they've undergone sexual reassignment surgery. In Phoenix's case he chose not to have the surgery as he suffers from a medical condition that would make it potentially life-threatening.
After asking for a medical exemption, on the basis of his condition, he was knocked back. So Phoenix took his case to the United Nations. "I then went to the Human Rights Commission and filed a complaint with them for disability discrimination and also for basic human rights violation, saying that requiring any person to undergo life threatening surgery in order to get a document changed is ridiculous," he said. The case is still pending.
A change in attitude, as well as legislation, is what Phoenix is calling for. "The requirements around gender/sex recognition on identification need to change to purely and simply being in alignment with how the person identifies, rather than have a medical intervention component," Phoenix explained.
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