Passports - The Final Chapter?

From The Scavenger:

A transsexual woman has won the right to a full, 10-year passport in her transitioned identity, without the need for undergoing sex realignment surgery first.
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In November 2010 after transitioning full time for just on one month, I consulted with my sex and gender therapist about how I could adjust my passport as I was required to travel overseas for business.

After receiving a letter from her indicating my change, I put together two statutory declarations, one from my business partner indicating my change and that was accepted by all our customers, and the other from myself indicating I was indeed transitioned full time. I then arranged for an appointment with the Passport Office to work with them to make the change.

I was warned ahead of time there might be issues and there were.

I live in Canberra and have been here most of my life. I have spent five years working in the public service and most of the other time contracting or consulting to them. I have friends who work in the public service. What one needs to note is that this isn't a game of chess when dealing with them, it’s much different, and I knew from the beginning that I had to ensure I was tackling their procedures and not the people working there.

As I discovered from my first meeting with them, they were polite, helpful and sincere in their dealings, it was just they were not trained or had any knowledge in what sex and/or gender identity is and how to understand transsexuals and why this was so important to us. What was missing and it was very obvious, was a lack of training and knowledge in anything sex and/or gender diverse.

It took her 7 months. It took me 20. But at least now we've gotten rid of the anomaly that some of those born overseas could qualify for Australian Passports, while those in exactly the same situation but born in Australia could not.

The case only lasted 7 months, about a third of mine. But it involved considerable expense, more even than mine. And the APO fought every step of the way. Count the number of knock-backs:

After my first meeting with the Passport Office, I was given a verbal decline for a full passport stating female in just 30 minutes because I was not booked for and showed no intention of having genital surgery.

That's one.

At this point I started on the paperwork. I knew it was important to keep a paper trail and I ensured everything said and done was documented, catalogued and tracked.

My history of events was going to be more accurate than theirs. So I requested another formal meeting. This time attending with three official letters of procedural complaint and one commendation to the original staff member who was legitimately sincere and polite in her dealings with me. There were two officials in attendance and it was a formal meeting.

The letters of complaint about their procedures related to the Passports Office’s website, which was incorrect and misleading and how my initial dealings with them were incorrectly handled. A couple of weeks later I received an official response denying my request, citing reference to the Passport Act and my birth certificate not matching my passport.

That's two.

I also didn't satisfy the “rare and unique circumstances of a compelling humanitarian nature”, which they said gave them discretion in such decisions on case by case basis.

I appealed the decision immediately citing prior cases and concerns about my safety in having to travel on a passport that did not reflect my gender identity and presentation. I requested an impartial mediator because I didn't believe my case was being heard fairly.

I also pointed out their obvious lack of knowledge and requested information about how I was judged on humanitarian guidelines. I felt confident with the appeal....
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My appeal was rejected on the same grounds as before.

That's three.

I rang their legal counsel regarding the appeal and realised very quickly that their level of knowledge regarding the sex and/or gender diversity was non-existent. Yet they had made these decisions. They refused to acknowledge risks to my safety when travelling on a passport that did not reflect my gender identity and presentation and insisted I use a Document of Identity (DOI) like other transsexual and transgendered people.

A document that amongst other things, does not allow travel to the USA, and does not guarantee a right of return back to Australia. You can leave the country.... but it could be a one-way trip, and there aren't many places you can go to.

It was then agreed during a phone call that they would answer any further questions I have in writing. Within two hours I submitted four pages, requesting information about their skill set, training and knowledge, what methods they used for determining humanitarian guidelines. I requested detailed reasoning why I needed answers before my appeal.

My questions were never answered and with one week to go I put in the appeal request to the Federal Government Administrative Appeals Tribunal (AAT). I had to pay a large fee up front and I requested a skilled and impartial person to handle it.

I had the same experience - formal letters requesting reasons for the decision not being answered. They're supposed to, to be compliance with the Administrative Appeals (Judicial Review) Act, if you write a letter like this:

Dear Sir/Madam,

In accordance with ADMINISTRATIVE DECISIONS (JUDICIAL REVIEW) ACT 1977 - SECT 13, please furnish a statement in writing setting out the findings on material questions of fact, referring to the evidence or other material on which those findings were based, and giving the reasons for the decision not to grant my passport application.

Yours Sincerely, etc etc

Getting back to the case in hand:

Realising that if I didn't do this, others would share a similar fate because the precedent was currently in the negative, I lodged the appeal and caught the Passport Office off guard as they referred to me in paperwork as female. I did succeed in getting a further small victory in that the Passport Office admitted in writing they had no procedures for determining what humanitarian guidelines one can be judged against.

Actually... I think that's a pretty big victory, and likely to have considerable legal weight.. but to continue:

At my preliminary hearing there were two lawyers, one a partner, representing the Passport Office. Intimidating – yes, but it worked well for me. I realised my case was more important and warranted more attention than I was led to believe. The Department didn't want to lose and they were using excessive legal muscle to ensure it.

The case went from a simple one of wanting to change one letter on my passport to ensure my safety when I travelled, into one now which looked absurd. Here I was, no legal skill, just fighting for my safety when I travelled, up against a government department sending in two lawyers to push their case.
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I felt at all times that this case was not about winning or showing up the Passport Office. That wasn't my goal. My aim was to help them understand that the implementation of procedures and guidelines were causing harm to those transitioning.
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Eventually after the preliminary hearing Passport Office conceded the case and it was settled with them issuing me with my 10-year female passport.

And some advice:

In cases such as mine, I advise people to follow their procedures to the letter, document what happens and let them know when the procedures fail. Focus on the procedures and guidelines, not the individuals. Always look for win/win situations and understand who you are dealing with. Be open and honest, do not be deceitful. Do your best not be bullied by bureaucratic procedures and stay strong because you are not alone.

And don't take "No" for an answer.

Trans women who transition late tend to have a certain stick-to-it-iveness. A certain persistence, sometimes taking that to extraordinary lengths. If they didn't, then they wouldn't have transitioned late, they would have transitioned early or died. That even applies to certain women who are technically Intersex rather than Transsexual...

It's not that it doesn't hurt. Here's what I wrote at the time things like this were happening to me:

It's important to step back, and think about what this whole situation is about.

It's about simply getting a Passport, something that by the Australian Passport Act, every Australian has a right to. I'm no Criminal, nor someone with dodgy citizenship, nor a Passport Trafficker or Terrorist. I already had a UK passport with the same correct details in. I needed to go overseas for surgery, there was a growing risk of cancer. I have a congenital medical problem, nothing particularly unusual, and that's all.

At a time when I was under great stress, when I was most vulnerable, I was treated worse than a Murderer - they can get passports. I was ordered to Divorce before a passport would be granted, something that was a gross abuse of power, and blatantly discriminatory. Had I not recorded it on my blog, as it happened, it would seem unconceivable that anyone could be treated this way.

For many months I faced the possibility that I would not be allowed back in the country to see my little son. The sleepless nights, the vast amounts of time spent writing letters, or waiting (sometimes for hours) at the Passport Office, all that was totally un-necessary. Pain and Suffering is an exact description of what was inflicted on me. I think many in a similar situation would not have coped. I came very close to losing it, as was reflected in my writings.

Now that there may be some light at the end of the tunnel, I can let my outrage at being treated like dirt show. I'm crying now, trying to get rid of the pain, the anguish, the frustration at the unreasonable and unconscionable conduct of some of those who had me at their mercy. HOW DARE THEY DO THIS TO ME? I'm Human.

I'm Human. I'm human. No human being should be treated like that.

I intend to make sure they don't ever do it again. That they never order anyone to Divorce. Victimised, I refuse to be a Victim. They don't have my permission to de-humanise me.

And so thanks to a very brave and persistent woman, who took them to Court - something I didn't have to do - there's been another step forward.

I just hope we don't have to go through this all again. They need some training, this is a systemic problem.

But if we do... then we will, and every single bit of caselaw helps.