Monday, 22 August 2011

Australian Human Rights Consultation

Consultation on draft Baseline Study
The Australian Government has committed to developing a National Human Rights Action Plan in consultation with civil society. An effective and forward looking Action Plan needs to balance areas of need and take an evidence-based approach to setting priorities.

The Baseline Study aims to assist with that. The Baseline Study builds on the findings of the 2009 human rights consultations to present a picture of the status of human rights in Australia by:

  • outlining relevant statistics and other research on key human rights issues
  • noting relevant recommendations from Australia’s recent Universal Periodic Review (UPR) at the United Nations
  • highlighting major government initiatives already in place, and
  • proposing issues that a National Action Plan could address.

In doing so, the Baseline Study importantly recognises potential gaps and negative human rights experiences which could be addressed in the National Human Rights Action Plan. We hope this consultation on the draft Baseline Study will prompt thoughts and suggestions of actions to address human rights issues in the National Human Rights Action Plan.
So now you have the opportunity to stick your oar in, to change the direction of the Ship of State.
3.5.3 Freedom from discrimination

According to the Australian Coalition for Equality, gay, lesbian, bisexual and sex or gender diverse people continue to report experiencing higher incidents of discrimination, prejudice and violence over a life time than the rest of the population in Australia.[1] All State and Territory anti-discrimination laws prohibit discrimination on the basis of sexual orientation, gender expression, sex or gender identity, or the identity of a partner. However, some participants in the National Consultation were of the view that the legal protections are inconsistent.[2] The Australian Government has committed to introducing legislation to prohibit discrimination on the basis of a person’s sexual orientation or gender identity. That legislation would apply consistently across Australia.

3.5.4 Sex and/or gender diverse people

The concluding paper of the Australian Human Rights Commission’s Sex and Gender Diversity Project identified ongoing issues of discrimination for the sex and/or gender diverse community within the realm of legal recognition of sex in documents and government records. The following key issues were raised in the paper:
  • Under most State and Territory legislation, a married person cannot apply to have their sex changed on their birth certificate.[3]
  • A person cannot apply to have their birth certificate changed to note their sex identity if they have not undergone sex affirmation surgery.[4]
  • Gender identification in records is largely binary (male/female). Passports can be issued with ‘X’ but only if the person’s birth certificate notes their sex as indeterminate.[5]
  • Requirements to record any previous name can divulge information about a person’s previous legal identity because the name is gender specific.[6]
The Federal Attorney-General has tasked his Department with coordinating a review of how and why the Australian Government collects sex and gender data. The Department will also work with relevant Australian Government agencies and State and Territory governments to consider developing a nationally consistent approach to legally changing sex.


[1]Australian Coalition for Equality, Submission to the National Human Rights Consultation, 2009, pp 121-122.
[2] Ibid p 123-124
[3]Australian Human Rights Commission, Sex Files: the legal recognition of sex in documents and government records – Concluding paper of the sex and gender diversity project, 2009, p 23.
[4] Ibid p 24
[5] Ibid p 27
[6] Ibid p 28
Not to "develop" a consistent approach, certainly not to "implement" a consistent approach, but to "consider developing" a consistent approach. One day. In the Fullness of Time.

So it's up to us, the voters, to hurry them up a little.

Closing date for submissions is the 31st - so we better hurry too. Submissions may be via the online form, or via e-mail.

We might start with this issue:
Ever since I transitioned from male to female the Passport Office has been acting strangely. When I wanted to change my passport I had to produce evidence that I had really changed my name, that I had really had irreversible genital surgery and that I was no longer married.

Then I was eligible for a passport that said “F” where it used to say “M”, but it still arrived with a testy note telling me this was all so that I could travel without embarrassment and that if I tried to use my passport to marry a male I would be liable to a fine of $5000.00 or six months in prison, or both. So it wasn’t intended to identify me as a woman but simply to allow me to pass myself off as a woman.

For a time the Passport Office would issue a temporary passport in a person’s target gender, but only if they were travelling in order to have the mandatory irreversible surgery required before documentation could be amended.

Then Border Security, under Lord Downer of Baghdad, rescinded even this tiny concession and stated that everyone had to travel on passports that matched their birth assignment, or on a Document of Identity, which showed no gender and was therefore liable to attract undue attention. Nor did a Document of Identity guarantee re-entry into Australia.

Grace Abrams took the Passport Office to the Supreme Court because she was denied a female passport unless she was willing to divorce her wife. She wasn’t, and she won her case.

Stefanie Imbruglio, on her way to have gender affirmation surgery in Thailand, travelled on a passport that showed her gender as male and encountered discrimination and harassment from various gatekeeper authorities. She took them on in the courts after she returned and won her case.

Recently Marcelle (who prefers not to give her surname) gained a female passport without surgery as a pre-requisite, since her profession requires her to travel and she will not travel on the highly questionable Document of Identity. It took seven months of negotiation but after going to the Administrative Appeals Tribunal she won her case.

When another transgendered woman tried to use Marcelle’s case as a precedent she was refused because the AAT decision was “a settlement on mutually agreed terms”, not binding on other cases.

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