When Janet Rice's wife transitioned, she had to choose between their marriage and her identity.

Greens Senator Janet Rice has been married since 1986. Like most long-term relationships, hers has presented its challenges. But the most significant in the Victorian’s 32-year union is also the most unique.

In 2002, her spouse came out as transgender.

In the years since, the relationship between the 57-year-old and her wife, renowned climatologist Penny Whetton, has monumentally shifted, but beneath it all has been a solid, familiar foundation.

“We love each other, and having been through both a heterosexual marriage and a same-sex marriage I know that they’re one and the same,” Senator Rice told Mamamia.

Yet, in transitioning, Penny Whetton was forced to make a choice no one should: that between her marriage and formal recognition of her gender identity.

This is because of a bizarre facility in state and territory law that prevents married people from applying to legally change their gender – that is, to have it altered on their birth certificate.

That basic right is currently only afforded to single trans people, meaning those who transition while married must temporarily divorce if they wish their records to reflect their true self.

The United Nations Human Rights Committee ruled this kind of ‘forced divorce’ legislation to be a violation of international human rights law in 2017, after a married trans woman from NSW took her complaint to the global watchdog.


But in spite of this, the bizarre requirement is currently in place in all but the ACT and South Australia, which repealed their respective legislation in 2008 and 2016.

So, why does forced divorce law exist?

As Trans Health Australia‘s Zooey Campbell explained to Mamamia, “In the late 80s and early 90s states and territories realised they had to have a facility in their Births, Deaths and Marriages Acts to allow trans people to change their gender. But there was a big concern at the time that if they allowed that for married people, they would be creating a category of legal same-sex marriage.

“And that has sat there ever since.”

trans forced divorce
Penny and Janet. Image: Facebook.

Of course, since marriage equality legislation passed through federal parliament in December 2017, these loophole-closing state-based laws no longer serve a purpose. Yet there they remain.

"It's disappointing," Senator Rice said. "It's just a very tangible example of how trans relationships aren't seen as being normal and deserving of all the rights of other people."

So what happens now?

The changes to the Commonwealth Sex Discrimination Act included a 12-month window to allow state and territories to bring their own laws in line with the new federal legislation; if they don't, they risk opening themselves up to discrimination claims.

Most have indicated they are looking into the issue, and Queensland Attorney-General Yvette D'Ath has gone as far as saying she will be "taking steps to address this in early 2018".

Still, trans advocates, including Trans Health Australia, are pushing hard to make sure governments follow through.

"My experience tells me that unless this is forcefully brought to the attention of government, they're likely to think of it as a minor matter, and that they wait until the last minute or simply not do it at all," Zoey Campbell said. "And the trans community does not want to be forced to make test cases to go to the Human Rights Commission and make discrimination complaints.


"We're wanting it done. We want what everyone else has now, which is marriage equality."

Why the urgency?

Birth certificate laws, Campbell argues, are just another symptom of the stigma and isolation trans people face everyday, another thing that suggests they and their relationships are somehow less-than.

While dissolving them would be a relatively simple piece of legislation, the significance to the trans community would be monumental.

"If you spent your whole life in denial, if you spent your whole life struggling with who you are and what it means to you, and why you don't feel right, legal recognition is just this incredibly huge, emotional event," she said. "It's incredibly important to have to feel affirmed as a human being. It's cruel when that is denied for what is, frankly, no good reason."

LISTEN: Eddie Ayres speaks to Mia Freedman about being born in the wrong body, and all it took to transition. (Post continues below.)

While Senator Rice accepts that change takes time in the world of state government, she argues this one shouldn't.

"If you're talking about someone who is being discriminated against in the present it's not enough to say, 'Oh well, we'll get around to it eventually,'" she said.

"There are consequences. Part of what contributes to poor mental health among trans people comes from perceptions of not being seen as equal, as having internalised guilt and shame that's been projected on to them. [Forced divorce] is another part of that."


While there is alarmingly little research on the mental health of transgender Australians, a recent Telethon Kids Institute survey of transgender youth (14-25 years) found that almost 80 per cent had self-harmed, compared to close to 11 per cent of adolescents in the general population. That's nearly eight times more.


Penny Whetton ultimately chose her marriage over an accurate birth certificate. But she and Senator Rice are hopeful that both will soon be possible, that marriage equality will ultimately live up to its name.

"There'd be celebrations in our household, absolutely," the Senator said. "It's something we're really looking forward to.

"I hope it can happen ASAP."

To help the trans community achieve true marriage equality, contact your local state or territory member and urge them to act on repealing forced divorce legislation. You can find their contact details here.

If you are struggling, please remember, help is available 24 hours a day via Lifeline. To speak to a trained counsellor, call 13 11 14. Support is also available between 3pm and midnight via QLife, a counselling and referral service dedicated to the LGBTQI community. You can call on 1800 184 527 or chat via the QLife website.