An Unexpected Reverse

Here's a letter I've just written to the Federal Member for Fraser. Similar letters have gone to both ACT Senators, and the Attorney-General.

From:
Zoe E Brain
(address redacted)

6 October 2010

Dear Mr Leigh

May I draw your attention to section 62 of the SEX DISCRIMINATION AMENDMENT BILL 2010

62 After subsection 40(4)
1
Insert:
2
(5) Nothing in Division 2 renders it unlawful to refuse to make, issue
3
or alter an official record of a person's sex if a law of a State or
4
Territory requires the refusal because the person is married.

The above section is directly contrary to the recommendations of the Australian Human Rights Commission. It also enshrines for the first time in Federal Law the concept that someone's sex depends on their marital status, as opposed to their marital status depending on their sex.

Yes, which sex they are depends on whether they're married or not. Or which country they were born in. Yes, it is that bizarre.

This kind of surreal legislation will bring the Gillard Goverment into disrepute - frankly, it will make them a laughing-stock. While the state and territory legislation may have been explainable in the past as a regrettable relic of prejudice against Intersexed and Transsexual people, to introduce it into new Federal legislation whose avowed purpose is to get rid of discrimination, rather than legitimise it, sends a most unfortunate message. The Australian Human Rights Commission is working towards ending such practices - not giving them additional legitimacy.

Consider - two Intersexed people, equally situate in all respects - but one is married, another not. So under your Government's new law, they become different sexes, though biologically identical.

In fact, it's worse that that: for you can have two identical cases, one born in Australia, one born overseas, and the one born overseas can have the federal "cardinal documentation" changed, and the one born in this country cannot. So which sex they are for the purposes of Federal law depends on where they're born.

I remind you - this is not some relic of a discriminatory past; the Gillard Government is for the first time, enshrining this situation into Federal law. Judges in various administrative appeals decisions (e.g. Imbruglia vs Dept of Foreign Affairs) have commented that this situation is not just wrong and inhuman, but insane. Until now, there has been some latitude for judicial discretion to mitigate the worst effects. This legislation would remove that, by making parliamentary intent to discriminate clear.

This situation also undermines the whole concept of Marriage being between a Man and a Woman, and will be used as such to attack your Government. Because you will be making it plain in this legislation that the whole concept of man and woman is entirely arbitrary, and independant of biology.

Only about 200 people per year will be affected by this, at most. Please consider though the effects on them.

Without a birth certificate or other documentation that matches the biological reality, I think you can imagine the effects. Documents proving Identity that obviously contradict reality will often be deemed forgeries.

In order to avoid these, married couples who wish to stay together are compelled to do one of two things; either to perjure themselves before the Australian Family Court, manufacturing false evidence and witness statements to the effect that they are separated; or to actually separate, to physically split, something not even the most fanatic religious groups in parliament dare to impose on same-sex couples. Unlike the few other jurisdictions where marriage is an impediment to having documentation corrected, there is no method of converting marriage to a marriage-like arrangement in this country. Finances must be separated, and separate custody arrangements made for children.

I therefore ask you to urge removal of section 62 in its entirety. This will enable the Australian Human Rights Commission to move forward slowly, haltingly, in urging the rolling back of such inhuman legislation at state and territory level, rather than suffering a giant and wholly unexpected setback.

Ideally, section 62 should say "Nothing in Division 2 renders it lawful to refuse to make..." as that is what the AHRC recommends.

I draw your attention to this AHRC recommendation:

Sex Files: the legal recognition of sex in documents and government records
Concluding paper of the sex and gender diversity project
March 2009

ISBN 978-1-921449-10-9

Available at http://www.humanrights.gov.au/genderdiversity/sex_files2009.html#Heading180

The very first recommendation:

Recommendation 1: Marital status should not be a relevant consideration as to whether or not a person can request a change in legal sex.

For the first time in Federal Law, the Gillard Government will explicitly make it so that it *is* a consideration. This is not just not a step forward, it's a giant leap backwards when it comes to human rights for Transsexual and Intersexed people.

It is one thing to ignore a human rights report; quite another to deliberately do the opposite of what is recommended - and in a bill that supposedly is against discrimination. That adds insult to injury. I hope it's inadvertant, and not deliberate, a taste of things to come in the Gillard Government.

Yours Sincerely,
Zoe E Brain

Now to write to the Greens. I suspect they may have some words with their coalition partners... at least, I hope so.