The Great Passport Fiasco : September 13th Edition

OK, so it looks like no airline will carry me home.

But there are things called ships....

And I have yet to contact Immigration to tell them of the APO's idiosyncratic behaviour. Maybe they can find a way.

Unfortunately, it looks like the next step, an appeal to the Minister to make a Ministerial decision and not delegate it, won't be answered in time to make travel arrangements. On past performance, the answer could well take more than the 4-6 weeks it usually does. And such appeals hardly ever get the decision varied anyway, it's a "last resort", almost a formality before hitting the Administrative Appeals Tribunal. And that takes some 10 weeks to schedule a hearing, minimum.

It's T-63 today, that means I have to leave the country in 60 days.

I don't exactly have contacts with Labor Party politicians slavering at the bit to crucify the Government over this. Well, OK, I do. A bit. But as someone who supports the Liberal Party, I'd still prefer to see the situation resolved without fuss.

I've gone to DEFCON 2 now though. It was the explanatory notes in the determination that did it. The bit that says that it was unneccessary or undesirable to give Transgendered people passports. Now it could be argued that this is reasonable, giving them a DOI while they're pre-op would save embarressment.

Except they don't just do it for pre-ops. It's anyone. Even those whose bodies would stand a gynacological examination - should they be married and unable to get their birth certificates changed.

The APO gives out 1-year "F" type passports to women so they can get Gender Reassignment, and then converts those to full 10-year passports on application. If they have their BC changed, If not, there's no conversion, and they'd have to apply and pay for a new one. One marked Male. In fact, in practice, the APO don't give out those. They may give a single DOI for voyages they decide are neccessary, but in general, Transgendered people's freedom of movement is severely restricted, as much or more than suspected passport thieves, and criminals being extradited or those with an outstanding arrest warrant.

After some umming and ahing, the APO decided not to offer me a DOI after all. I could apply for one of course, but only if I perjured myself, and pursuaded a gurantor to perjure themselves too. Then they may give me one. Maybe.

Enough.

Time to get Legal.

But first, a neccessary formality. Writing to the Minister, with Buckley's chance of the decision being changed. Less that that of it being changed in time. But who knows, the best estimate of the odds of my condition happening are at least 1 in 1,000,000, I might get lucky.

To :
The Hon. Alexander Downer MP
Minister for Foreign Affairs and Trade
Parliament House
Canberra

From :
Zoe Ellen Brain
(address 1)
(address 2)

Date:
13th September 2006

Re :
Letter from Acting Executive Director of the Australian Passport Office 6th September 2005


Dear Mr Downer,

In accordance with the Australian Passports Act 2005 ("The Act") section 49, I wish to apply for a review by you of the decision communicated to me in writing by the Acting Executive Director of the APO in a letter dated 6th September 2005.

In short :
I have inconsistent documentation regarding my gender. Old documents say male, new ones female.

I have a rare medical condition causing a natural change of apparent gender over one's lifetime. This is not the 5ARD Intersex condition long known to cause this kind of transformation, but it has somewhat comparable effects.

I need to travel internationally to complete my PhD over the next 3 years.

I need to travel internationally for necessary surgery in early November 2006. This surgery will leave me with an apparently normal female body rather than an abnormal one, but is also necessary to reduce the increasing risks of cancer.

I have a UK passport showing a Female gender, and only require a document to confirm my Australian Citizenship for re-entry to Australia. My Citizenship certificate is not considered adequate by Airlines.

I have been unable to obtain a passport, and a document of identity has not been offered as an alternative.

In order to provide evidence for a possible Administrative Appeals Tribunal Hearing, please provide me with a statement of what exactly your decision is, what evidence was considered, and why the decision was made.


In accordance with subsection 49(3) of the act, I have set out the reasons for my appeal in some detail below. I have also taken the liberty of suggesting alternative decisions which it is open to you to come to.

The referenced letter is highly eliptical, even obscure, but it is possible to deduce from it, and a close reading of the Act, the Australian Passports Determination 2005 (The "Determination") and the Explanatory Notes to the Determination (The "Notes") the following matters of fact.

1. That you are satisfied of my Identity.
2. That you are satisfied of my Australian Citizenship.
3. That you have determined that my Identity is that of a person living in the identity of the opposite sex - Transgender within the meaning of the Notes.
4. That you have determined that accordingly the issue of a passport to me is uneccessary or undesireable.
5. That issue of a passport with details in accordance with the application is not possible pending both medical evidence being adduced and my marriage being dissolved, and even should both conditions be met, it may be decided not to do so.
6. That because the issue of a passport is unneccessary or undesirable, a Document of Identity (DOI) may be offered instead.

Certain matters that were left ambiguous in the letter were cleared up in a Telephone call from a representative of the APO on the 11th of September, namely:

7. That the requirement to divorce was strongly affirmed. The exact words were "we cannot have someone who is married changing gender." This despite the fact that the APO has in its posession a letter from your colleague, the Hon Phillip Ruddock, Attorney-General, that states:

"Whether or not a marriage is valid is determined at the time the marriage takes place. If the parties to a marriage are a man and a woman at the date of the marriage them, if there are no other grounds for invalidity, the marriage will be valid. Events that occur after the date of the marriage cannot affect that validity, so if one of the parties to the marriage changes their gender the validity of the marriage is not affected. If the two parties wish to remain married they are able to do so."

8. That the DOI would only be valid for one return to Australia from overseas, for the purpose of having necessary surgery. It would not cover the multiple journeys I require over the next 3 years to complete my PhD, a fact attested to in a letter from my PhD supervisor which is in the APO's possession.

9. That no DOI was actually being offered, it would require an application by me for one. Thus I would not be an "Australian Citizen who is Transgender" but an "Australian citizen who requests a document of identity instead of a passport" as stated in the Notes. Thus instead of it being a humane alternative involving no statement as to my gender by either party with least emberrassment all round, it is a coercive instrument involving extra expense, and the option of the APO to knock back the application so the whole thing starts again.

10. That for the the application to be considered it would have to contain what I believe to be false data, inasmuch as it would say I am male, contrary to the existing evidence in the APO's possession, which is
a) That Medicare Australia states unequivocally in writing that my gender is female
b) That moreover, I am being treated for "moderate to severe androgenisation in a non-pregnant women", a nonsense if I am male.
c) A current UK passport showing a female gender.
Inter alia, that would mean I would have to find a guarantor who would under penalty state this false information as true, an impossible condition.
It would also mean that I would be committing a criminal offense. Either contravening section 18(1) of the Foreign Passports(Law Enforcement and Security) Act 2005 (by saying I am female when I applied for a UK passport when actually male) or section 29(1) of the Australian Passports Act (by saying I am male when applying for an Australian passport when I am actually female).

11. Finally, that the medical evidence required would have to be that of "gender reassignment" not "gender affirmation". That is, it would have to be female-to-male. I have to believe this must be some misunderstanding, but the APO representative was adamant that that was the Law and they had no discretion.

As far as I can see, there is no requirement in Law for me to divorce before I can get a gender-changed passport. Had I been born in Australia, it is conceivable (though not legally required) that a Birth Certificate change would be required first, and with the current State and Territory laws, that would entail that the person be unmarried. But I was born in the UK, and there those who have had not had surgery can have their Birth Certificates changed, while others who have had surgery cannot, regardless of marital status.

I would not be surprised if the Manual of Passport Issue, or whatever the current equivalent is, does not state that those born overseas just have to show evidence of surgery for a passport, and not that they are unmarried. I believe that the APO's decision there is contrary to the administrative guidelines. I also believe that the decision not to offer a DOI but to require an application is also contrary to the guidelines.



Mr Downer, I would be quite satisfied with any decision of yours that meets the following criteria:

1. I will not state any information I believe to be false on any passport application. I have a high security clearance, I just can't do things like that. Call me old-fashioned, call me pig-headed or "recalcitrant", I just can't do it, regardless of any guaranteed immunity from prosecution.

2. I need to travel overseas for surgery as a matter of some urgency. I can do that on a UK passport, I don't actually need a DOI except to return to Australia. So I need some form of re-entry document within the next few weeks on purely humanitarian grounds.

3. I also need to travel extensively over the next 3 years to complete my PhD. Having to apply for a separate DOI and possibly wait 4 months each time as I have done this time is unreasonable, especially since the details of some conferences are only finalised 2 months before they are conducted. I therefore need a re-entry document valid for 3 years, with the assurance that it may be extended on application. To deny this would be an unreasonable restriction on Freedom of Movement.

4. My partner and I have a 5 year old son, conceived with technical help as I was never normally male, even when I looked like it. We value marriage as a sacred sacrament. Ours may dissolve under the strain (strain which your department has increased markedly), but we hope it doesn't, for our child's sake. We will not divorce merely to make life more convenient. If you truly value the institution of marriage, a marriage contracted when we were Man and Wife as opposed to the celibate partners and co-parents we are now, please reconsider. The Attorney-General has said we don't contravene the Marriage Act, after all.

If I may be so bold as to point out possible alternatives, all well within the Act, the Determination, and the Notes:

1. Do not issue anything. Allow me to go overseas for surgery. Accept the overseas surgeon's evidence of Gender Affirmation, and if need be, have a medical expert at the Australian Embassy view the photographic evidence taken during the surgery to confirm that I will be Female by any reasonable definition at the end of it. Then issue the passport at the Overseas Embassy based on my current application, just as if I had been a normal Transgendered person getting a normal Gender Reassignment. I would accept your written assurance that given reasonable medical evidence that I would look female to a gynacologist, the exact path how I got there doesn't matter.

2. Issue the passport as applied for, on the grounds that in 63 days time, the whole thing will be moot. By all means have a covering letter saying this is on humanitarian grounds, and not to be used as any form of precedent.

3. Issue a passport for 12 months validity only, and state that I would merely have to show medical evidence of having had Gender Affirmation surgery for it to be extended or re-issued with the same details. Basically, treat this as a normal Gender Reassignment, even though it's not. It is surgery that results in a normally appearing body for the gender opposite to my birth certificate, and that's what's important. As I was born overseas, there is no requirement for a Birth certificate change, nor to divorce.

4. Withdraw the application for the passport, refunding the fee as it was not actually refused, and issue a 3-year DOI restricted so it is not valid outside Australia, it can only be used for re-entry in conjunction with other travel documents, but it can be extended upon application. This is the best option if you as Minister believe that it is undesirable that Transsexual people who are married should be issued passports. It would allow me to complete my PhD, and have my surgery, and not embarress the country as I'd be using a UK passport whenever I was overseas.

5. Consider the application De Novo, taking into account only:
i) The Citizenship Certificate in the name of Zoe Brain
ii) The application form, and attached photos
iii) The drivers license
iv) The medicare card
v) The UK passport
vi) The Medicare Australia letter showing a Female Gender, and treatment regime.

This would in the normal course of events be sufficient to establish a normal female identity. None of the controversial or contentious (and arguably obsolete or misleading) documents need be considered.

Also note that it is impossible for a Transgendered (as per the meaning defined in the Notes) person to be undergoing treatment as a non-pregnant woman, unless they were a female living in the identity of a male. I am living in the Identity of a female.

It could be argued that the previous Australian passports were in a different name from the one on the citizenship certificate, so are irrelevant.

6. Issue a passport showing a male gender, despite the details shown on the application, but in accordance with the determination that I am Transgendered according to the definition in the Notes. This will cause problems entering the USA, as it is inconsistent with both my body configuration post-November and my UK passport. It would solve the immediate problem, but would certainly cause a legal appeal in future.

7. Issue a passport showing an Indeterminate Gender, as given the inconsistent medical evidence and the documentary evidence, you have been unable to determine my Gender while still being satisfied of my Identity and Citizenship. As I was born overseas, this determination is not within the realm of any Australian RBMD, it is yours to make, and is entirely consistent with past practice.

As Minister, as opposed to a delegate acting in accordance with ministerial direction, it is open to you to do any of the above while remaining within the law. Of the proposed alternatives, only the 6th would result in the matter being taken further.

Yours Sincerely,
Zoe Ellen Brain BSc MinfoTech(Distinction)

When the expected reply saying that the decision stands, that's when the AAT process begins. Which I'll watch from afar, in the UK, exiled from my Homeland and Family.