Repealing forced divorce law a new focus for LGBTIQ advocacy

Repealing forced divorce law –  a new focus for LGBTI+ advocacy Image: Peter Hershey/Unsplash


By Edison Wang

Same-sex marriage has become a reality in Australia with the passing of the Marriage Amendment Act 2017, a huge step towards social equality.

Beyond this milestone achievement, however, is the continued discrimination against thousands of transgender, intersex and queer Australians in other areas of law.

It is now time for Australia to refocus on other important issues, such as the repealing of existing “forced divorce” laws and allowing easier gender changes on birth certificates.

The forced divorce law currently exists in all states and territories except South Australia and the Australian Capital Territory, prohibiting married individuals from changing their sex on their birth certificates unless they divorce their partners to do so.

The operation of these laws is highly discriminatory, particularly against transgender individuals and their spouses.

Equality advocate Rodney Croome says the operation of forced divorce laws, “makes transgender partners choose between their gender identity and their solemn vows of lifelong commitment”.

And not only is it debilitating for the individual, it also renders Australia in breach of its obligations under international law.

In June last year, a UN Human Rights Committee found the forced divorce law in New South Wales violates Article 17 and 26 of the International Covenant on Civil and Political Rights (ICCPR).

Where opponents of reform previously argued that repealing the forced divorce law would conflict with the federal Marriage Act, this is no longer valid as marriage is now understood as the union of two people irrespective of their gender.

The Marriage Amendment Act also made significant changes to the Sex Discrimination Act by removing section 40(5), making it potentially unlawful for state and territory governments to refuse to alter an official record of a person’s sex.

But a 12-month transition period is in place which delays these changes to 9 December 2018.

Advocates urge state and territory parliaments to act sooner, rather than later, to finally consign forced divorce laws to history.