03:48, June 27 79 0 theguardian.com

2017-06-27 03:48:03
Even the UN rejects the government's stance on transgender married couples

Although Christopher Pyne believes that his government will allow same-sex couples to marry, “sooner than everyone thinks ”, it is clear that he is very much out of step with those who call the shots within the Liberal party. Not only was he quickly contradicted by both Malcolm Turnbull and Tony Abbott, but the federal government’s recent conduct reveals just how far it is prepared to go to stop same-sex couples from being married. Although it is not widely known, the Australian government has been arguing on the international stage that the handful of same-sex couples in Australia who are married should be required to divorce.

So how are there any same-sex couples legally married under Australian law? This has come about because there are couples who married when they were a man and a woman, but where one of the partners subsequently changed their gender. The most high profile example of such couples is probably Greens Senator Janet Rice and her wife Penny Whetton.

In most Australian states and territories, if a transgender person wants to change their birth certificate to reflect the gender with which they identify, they can, but only if they are single. A married transgender person is not able to change the sex recorded on their birth certificate unless they first divorce their spouse – the ACT and South Australia being notable exceptions. Victoria attempted to follow suit last year, but the legislation did not pass in the upper house.

Imagine being a happily married person and being told that the only way you can be legally recognised with the gender you identify as, is if you divorce the person you love. This was the situation for a transgender woman in NSW. She was so outraged at being told by the Registrar of Births Deaths and Marriages that to be legally recognised as a woman she had to divorce her spouse, that she took her complaint to the United Nations in a case that has become known as G v Australia.

So while Christopher Pyne is telling his Liberal party mates that marriage equality is not far away, his government was vigorously defending the prohibition on married transgender people changing their birth certificates on the basis that marriage is limited to heterosexual couples. The government was adamant that requiring a transgender person to divorce their spouse before they can change their birth certificate is a reasonable, necessary and appropriate means of ensuring that same-sex couples in Australia are not able to marry. One has to wonder how the government can justify the amount of time and money spent defending this claim, all for the sake of ensuring that a very small number of happily married couples get divorced.

The UN human rights committee recently handed down its decision on this complaint. It found that Australia, by refusing to allow a married person to have a birth certificate consistent with their sex unless they get a divorce, was breaching the international covenant on civil and political rights. In particular, the government’s action violates the right to privacy and family (article 17) and the right not to be discriminated against on the basis of marital status or gender identity (article 26).

The UN rejected the government’s assertion that denying a transgender married person a new birth certificate that accurately reflects their gender identity was necessary to ensure that marriage is only available to heterosexual couples. In particular the committee noted that the government is acting inconsistently by allowing a married transgender person to have a passport in the gender they identify as, but not a birth certificate. The human rights committee stated that Australia:

has not provided any explanation why a change in sex on a birth certificate would result in irreconcilable and unacceptable conflict with the Marriage Act if the author remains married, whereas a change in sex on her passport in identical circumstances is allowed.”

Indeed, the committee found that allowing a transgender person to have a passport evidencing a gender different to that on their birth certificate created conflicting ID documents which could “mislead a governmental office, passport control, etc., as to the true identity of the bearer.”

The human rights committee concluded that Australia is obliged,

to provide the author with a birth certificate consistent with her sex. The State party is also under an obligation to prevent similar violations in the future. In this regard, ... the State party should revise its legislation to ensure compliance with the Covenant.”

No doubt Christopher Pyne will welcome the decision in G v Australia but recent events tell us that many others in his party will not.

Indeed, Malcolm Turnbull today made it very clear that he will not allow parliament to consider legislation to reform marriage laws in Australia until after a plebiscite has been held and, as we all know, legislation to hold a plebiscite was defeated in the Senate late last year. It is very apparent that the government is determined to ensure that, at least for the foreseeable future, marriage will remain an exclusively heterosexual institution.