New Victorian law will create legal same-sex marriages

Greens senator Janet Rice (left) and her partner, Nobel Prize-winning climatologist, Penny Whetton

When Janet married Penny 30 years ago, their marriage was a heterosexual union between Janet and Peter. Now, new Victorian laws mean they could be legally recognised as wife and wife. More than a decade ago, Victorian Senator Janet Rice's husband Peter Whetton​ became Penny, and the pair's marriage transformed into a same-sex relationship between two women. While the couple remains legally married, their marriage exists in a legal grey area. Dr Whetton has been unable to change her birth certificate to reflect her affirmed gender - despite holding an Australian passport that identifies her as a woman - or risk being forced to divorce Senator Rice, in a so-called "trans-forced divorce".


On 18 August 2016 the Victorian government introduced legislation that removes legal barriers faced by trans and gender diverse people who want to change their birth certificates.

The changes will create a small number of legally-married same-sex couples in Victoria for the first time, although marriage equality activists will have to wait until federal laws change to see true equality.


Under the proposed changes, couples who enter into a heterosexual marriage before one partner transitions will no longer be forced to divorce if that partner seeks a new birth certificate.

While the federal Marriage Act still stipulates that marriage is between a man and a woman, it's understood this legal definition will not affect marriages that have already been entered into, but which change over time.

The laws would also change the complicated and onerous requirements imposed on people wanting to change the gender on their birth certificate: currently they must be unmarried, 18 years of age or over, and to have already undergone sex reassignment surgery.

Those changing their birth certificate will be able to nominate a "gender diverse or non-binary descriptor" on their certificate.

"Nobody should be forced to undergo major surgery or choose between maintaining a legal relationship with their spouse just to get a birth certificate that reflects who they are," Attorney-General Martin Pakula said in a statement.

Parents will be able to apply to have the sex of their children changed on their child's birth certificate, with the child's consent. Teenagers aged 18 and older will be able to apply for the changes themselves.

The Victorian changes reflect the evolving understanding of gender and marriage: the ACT changed its laws in 2014 to allow trans people to change their gender identity on their birth certificate to male, female or "X".

Transgender Victoria chairperson Brenda Appleton said Victoria's laws would be superior to the ACT's, because trans people would not be required to get a diagnosis and medical certificate to have their birth certificate changed.

"To me, it's a human rights issue and we should have the right to have a birth certificate that references our gender, not the gender that's been assigned at birth," she said.

Human Rights Law Centre advocacy director Anna Brown welcomed the changes.

"Former federal Attorneys-General from both parties have taken the view that the Marriage Act is concerned with the gender of the couple only at the time of the marriage ceremony, which means states can and should be removing this unnecessary and discriminatory requirement."

Senator Rice said the changes would remove the "crazy and discriminatory spectre of trans-forced divorce", and urged other states to follow suit.

"We welcome the changes, and call for similar changes to be rolled out across all states and territories," she said.

Senator Rice said she and her wife would discuss having Dr Whetton's birth certificate changed.

"We've been happily married for 30 years and we want to remain so," Senator Rice said. "We'll definitely discuss it, yes."

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Yesterday, my partner Penny and I got some exciting news. Along with other trans people in Victoria, Penny is now able to change her birth certificate without us having to get divorced.


The Victorian government’s announcement that trans, gender diverse and intersex people will be able to request new birth certificates without having to show proof of divorce removes this terrible choice for married couples in Victoria.


In addition, changing birth certificates will be simplified for parents changing the sex of their child and trans people will no longer require a diagnosis and medical certificate.


This win deserves to be celebrated as an important step towards empowerment and fairness before the law, but there’s still a long way to go to achieve equality for trans, gender diverse and intersex people around Australia.


Let's celebrate this win – share our story and let’s continue the push for equal rights.


The Greens are committed to ending the discrimination of gender diverse and intersex Australians, bringing communities together, standing strong against attacks on Safe Schools and campaigning to remove the barriers for trans young people to get the treatment they need.


Not only do we need other states to follow suit, but we need to continue targeting other discrimination against trans, gender diverse and intersex people.


As we celebrate this win let’s pledge to continue working together in schools, workplaces and communities until everyone is valued and treated equally.


With happiness and hope,


Janet Rice


Greens spokesperson for gender identity and intersex issues