I just had a TELCON with the case officer for my passport application from last year. In it, he stated that for me to remain married and be recognised as female would contravene the Marriage Act.
I remonstrated, quoting the Re Kevin decisions by the full bench of the Family Court, the letter from the Attorney-General, the Hon Phillip Ruddock, and Mr Ruddock's numerous speeches on the subject to the contrary. The APO may not be lawyers, but they have a copy of the letter.
I informed him that according to the Australian Passports determination 2007(4), someone's sex is determined by their Australian Birth certificate (if born in Australia), or, if born overseas, the records held by the Department of Immigration and Citizenship (DIAC - formerly DIMIA).
As was reported:
The Department of Foreign Affairs and Trade said the purpose of the amendment was to "strengthen the integrity and security of Australian passports", arguing that only the State and Territory Registrars of Births, Deaths and Marriages and the Department of Immigration and Citizenship have the legislated power to amend records when people have satisfied their requirements to record a change of gender.
As I was female according to DIAC... whereupon he interrupted, saying that if I was married, I couldn't be. I then told him that I was, and that there was no requirement for the person to be unmarried, they merely had to show adequate medical evidence.
He then spent some time looking up the regulations. And found out that indeed, there was no requirement to be unmarried. He was also unaware that my gender had been changed by Immigration, he thought that was impossible. (So my bet is that they didn't bother checking...)
I then emphasised that this state of affairs hadn't changed since my last application. That I was legally female then, and am legally female now. I asked what legislative basis the APO had for demanding that I divorce before a passport would be issued.
He said "when you put it that way..." and advised me to re-apply. A refund cheque will also be sent to me, as should have happened almost a year ago.
I may not win. But if not, it's straight to the AAT - Administrative Appeals Tribunal. Come to think of it, I'm going to write a letter asking for the legislative basis for them denying me a passport last year, when they knew, or ought to have known, that Immigration had changed my details.
Of course if I do win, then those Australian TS women born here might have a very good case for a complaint of discrimination. That those born outside the country are allowed to be unmarried, while those born inside are not. This might help them.