A.E.Brain: Search results for passport

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Friday, 10 August 2007

Please, Please Help!

I'm calling for help here, from any and all readers and bloggers.

From SAGE:

Passports Denied to Trans Community by Australian Minister for Foreign Affairs

In May 2007 Alexander Downer the Australian Minister for Foreign affairs signed an order that changed the policies of the Australian passport office concerning the issuing of passports to members of the trans community. The paper was signed in secret without consultation with the sex and gender diverse community, health service providers and nor was it debated in open parliament.

Quote from Passport news July 2007

"On the 31st. May 2007 the Foreign Minister signed Australian Passports Amendment Determination(2007 (No. 1), which spells out that a person's identity for passport issuing purposes comprises four pieces of information; That is name, gender place and date of birth, as recorded on the applicant's cardinal document. This amendment particularly affects the issue of travel documents to transgender people and new policy instructions are being drafted and will be released shortly via the content Management System (CMS)

Transgender people travelling overseas for gender reassignment surgery will no longer be able to obtain a limited validity passport reflecting their intended sex. Instead, they may be issued a limited validity passport showing the gender recorded on their cardinal document, which may be replaced gratis after the gender reassignment is completed (i.e. produces a cardinal document in their assigned gender). Alternatively a limited validity Document of Identity (DOI), which does no include a gender field, may be issued, letter 10 must be given to the client explaining the limitations of the document and Letter 11, acknowledgment of receipt of the advice must be completed by the client.

Transgender clients are often supported by active advocacy groups and passport applications should be handled sensitively. Any client issues should be documented carefully. Only cases that meet the new policy may be issued a passport in the assigned gender."

Background

People in Australia who have undergone sex and gender realignment and have had surgery to remove their reproductive organs have been able to change their passport to their new sex and gender, for many years. Until May of this year natal birth males who were transitioning to female could get a one-year passport to go abroad for genital realignment surgery; and on proof of that surgery, then acquire a long-term female passport. For natal born females who transition to male that construction of male anatomy is surgically much harder to do so the burden of proof of genital surgery has always been a grey area, which the Australian government has never delved too deep into.

Unlike in the UK, people who are medically unable to undergo such big operations, as genital reconstruction, have been unable to get a passport that reflects the gender that they may have transitioned to because they have not had that surgery. Also people who are transgender in Australia, and live as one sex but have genitals of another sex, are also unable to have a passport that matches their social presentation whereas in the UK they would. This has always left this sector of the Australian population in the very difficult position of not being unable to travel abroad or having to travel abroad on a passport that was a different sex to the gender they were presenting. This means they are immediately identified as trans and susceptible to abuse, unnecessary interrogation and embarrassment by passport officials in other countries, hotel staff and in any situation where they would have to prove their identity.

From a human rights perspective this has always been a breach of international law by Australia as those countries, who are members of the United Nations Covenant of Civil and Political Rights (Freedom of Movement Article 12), should not deny their citizens a passport and the rights of free and safe passage. A passport that does not reflect the gender in which a person lives in society leaves that person open to danger during travel.

The effect of this order

This was an unnecessary policy change by the Australian Passport Office that sought to victimise one of the most vulnerable minorities, who the government believed could not fight back. It was plainly a move by the Howard government to please the right-wing arch conservative voters, who the government are relying upon for votes during the up and coming election. It is further a move on behalf of the Howard government to shut down any possibility of gay marriage so that a person with a passport in one sex and birth certificate in another could not marry, thereby creating a gay marriage; an extension of the present government's extreme homophobia translated into transphobia out of desperation.

These polices are in line with the kind of religious extremism that seeks to terrorise minority group in countries like Australia, America and Saudi Arabia and Iran etc, who do not fit into the mainstream religious concepts prominent in those countries. They are the opposite to countries like the United Kingdom which have embraced trans people travelling on passports of their choice or Spain which has embraced gay marriage.

This change in passport policies will affect very few Australians but it will affect one of the most vulnerable trans groups in our society: pre-operative and non-operative trans people, leaving them open to danger, intimidation, and security issues during travel abroad. A Document of Identity, which they may be issued with, does not carry the same status as a passport to restrict the travel of its owner and does not state the person's sex or gender identity. Health organisations who cater for the trans and intersex community in Australian were never consulted on this change in policy.

What the Australian Government needs to do

The Australian Minister for Foreign Affairs, Alexander Downer, needs to review the policies of the passport office, bringing them in line with humane principles for treating all Australian citizens with equal validity. Some people identify as male and some as female but there are many people who are neither physically or socially part of the polarity separatism. Many trans people are part of the intersex spectrum but also many transgender people live as one gender but have genitals that may be different from how they present.

The passport office needs to:

1. Give passports to pre-operative or non-operative transsexuals or transsexed people, who have not had genital surgery, in the gender in which they live, for unrestricted travel.
2. Allow people who were married before transition to remain married and get a passport in their new gender presentation.
3. Give passports to transgender people in the gender in which they live for unrestricted travel.
4 Allow an individual who requires it to have no sex or gender stated on their passport.

SIGN SAGE'S PETITION TO THE AUSTRALIAN MINISTER FOR FOREIGN AFFAIRS:

www.petitiononline.com/sagepass/petition.html

Saturday, 16 September 2006

That is notoriously paved with good intent. Now the following is conjecture, but it's conjecture that fits the evidence. It's the story of how a well-intentioned legislative change can go catastrophically, horribly wrong.

Originally, the situation regarding changing of gender was something like this:

722. Full validity passports issued to transsexuals may show the sex of re-assignment subject to production by the applicant of medical evidence of re-assignment and on provision to the applicant of written advice that the sex indicated in the passport is for that purpose alone (Paragraph 729).

723. Each request for a passport showing the sex of re-assignment must be supported by a certificate from an appropriate Medical Practitioner that successful re-assignment surgery has been performed, evidence of change of name, and usage of that name.
...
725. Persons travelling overseas for the specific purpose of undergoing a sex reassignment operation may be issued with a passport showing the intended sex on condition that appropriate medical evidence supporting the application is provided. Such a passport will have limited validity for one year and will only be replaced with a full validity passport stating the changed gender on presentation of medical evidence confirming that the operation was performed successfully.

People who were "transgendered" - that is, fulltime crossdressers, pre-operative transsexuals, and non-operative transsexuals were not considered.

Pre-ops could get a temporary passport in the correct gender to have their surgery, and of course, when post-operative, would get a passport showing their new gender, as a matter of course, and regardless of their marital status or where they were born.

This caused considerable hardship in a number of cases. Women who had medical conditions such as Diabetes or Heart conditions that prevented surgery, yet who had lived in a female identity for years or decades, found that they had to apply as males - and that they had to find a guarantor who had known them for a long time and would attest to their masculinity. This was in many cases impossible.

Worse, when given an M type passport and presenting as F, they faced terrible difficulties at checkpoints and border crossings. They could be refused entry, or given invasive searches by males, even put into a male holding facility pending deportation, along with drug pushers, criminals, and the insane. The results were sometimes... unfortunate. It would have been kinder just to give them a lethal injection. Just as fatal, but with less suffering.

In the Re Kevin decision, Justice Chisholm said in a judgement strongly affirmed by the Full Court on Appeal :

‘I agree with Ms Wallbank that in the present context the word "man" should be given its ordinary contemporary meaning. In determining that meaning, it is relevant to have regard to many things that were the subject of evidence and submissions. They include the context of the legislation, the body of case law on the meaning of "man" and similar words, the purpose of the legislation, and the current legal, social and medical environment. These matters are considered in the course of the judgment. I believe that this approach is in accordance with common sense, principles of statutory interpretation, and with all or virtually all of the authorities in which the issue of sexual identity has arisen. As Professor Gooren and a colleague put it:-

“There should be no escape for medical and legal authorities that these definitions ought to be corrected and updated when new information becomes available, particularly when our outdated definitions bring suffering to some of our fellow human beings”.’

So the Human Rights and Equal Opportunities Commission made a submission, which read, in part:

The gender identity of transsexuals is recognised by the Federal Government to a certain extent in relation to passports. A person that has undergone gender reassignment surgery may obtain a new passport in their reassigned sex. A person intending to travel overseas for sexual reassignment surgery may obtain a temporary passport in their new sex and once the surgery has been completed they will be eligible to apply for a full ten year passport in their new sex. However, transgender people that have not undergone reassignment surgery are not able to have their identified gender recorded on their passport. A new passport does not mean that the Federal Government recognises transsexual gender identity in any other capacity and this document cannot be used as proof of gender identity for other purposes such as marriage.
...
It is recommended that the Federal Government review the status of transgender people in relation to the recording of gender identity on passports. Current practices allow for transgender people that have undergone gender reassignment surgery or are intending to undergo surgery to change the sex that is recorded on their passport. This practice ignores the gender identity of many transgender people that are unable to have gender reassignment surgery for medical or financial reasons and those that have no desire to have such surgery and live comfortably in their identified gender. It is recommended that the Department of Foreign Affairs and Trade, Manual of Australian Passports Issue is reviewed to reflect the concerns of the transgender community to have their identified gender recognised on official documents.

Well, they didn't go quite that far. Instead, someone had the Bright Idea that a document of limited validity, good for 5 years (later changed to 3) not 10, and not considered adequate as a passport by many countries, but with the great virtue that it made no statement about the holder's identity, could be used. Such a document existed, the Document of Identity, or DOI. In response to a passport application by someone who was evidentially transgendered and pre-operative, A DOI would be offered as an alternative to an arguably useless M type (for someone identifying as female) passport. No statement would be made about the holder's gender as far as the Government was concerned, and no admission that the holder was "really" of a gender other than the one they identified as would be required. It had its disadvantages :

Documents of Identity and transgender people

1 Applicants who are living in the character of a member of the opposite gender may apply for the issue of a Document of Identity.. Personal details on a Document of Identity do not include gender. Because of the possible disadvantages in using a Document of Identity for travel, the applicant should be advised in writing that:

* Some countries do not regard a Document of Identity as a valid travel document;

* Customs/immigration authorities in some countries may view the possession of a Document of Identity in lieu of a passport with suspicion and consequently delay or harass the bearer at entry points; and

* Should customs/immigration officers decide to conduct a body search there is a very real risk of embarrassment to the bearer (this may also occur to a pre-operative person issued with a limited validity passport).

Overall though, it was a humane compromise: not quite as good as a full passport, but often good enough, and issue of it avoided all sorts of legal complexities and a possible test case about gender that the Government didn't want. The Re Kevin decision hadn't gone their way, and who knows what the Courts may find? A Transgendered applicant would be faced with the question of whether they wanted to fight for years, and have a possibly financially devastating loss and lose existing rights, or accept the compromise. By applying for a passport in an F identity, they asserted their right to be considered that, and the Government made no reply either way - just offered this alternative.

And the option of a 12-month validity F passport was still there for SRS, should they wish to travel for the operation to a country where a DOI was inadequate.
Not perfect, but the hardship caused would be small. Not as good as the UK policy, of issuing a correctly gendered passport on evidence of living permanently in the new gender, but good enough.

And so it came to pass that the Explanatory Notes to the Australian Passports Determination 2005 said, in part :

60. Depending on the circumstances, rather than refuse to issue a passport, the Minister (or a delegate of the Minister) may decide to issue a passport but reduce the validity period, for example, to meet the immediate travel needs of the applicant. In other circumstances, the Minister (or a delegate) may refuse to issue a passport but issue a document of identity to meet the immediate travel needs of the applicant, as noted below (section 6.3).
...
Section 6.3 – Documents of identity

· A document of identity is normally issued to Australian citizens in relation to whom the Minister (or a delegate of the Minister) considers it is either unnecessary or undesirable to issue a passport (paragraph 6.3(1)(a)).

87. An important example of when a document of identity may be issued when it is unnecessary or undesirable to issue a passport is when a person has lost or had stolen two or more passports and the Minister (or a delegate of the Minister) has decided to refuse to issue another passport. The person may be issued with a document of identity for international travel for a particular purpose. This enables the Government to balance the competing policy priorities in the International Covenant on Civil and Political Rights (1980 ATS 23, Article12) ensuring freedom of movement for a person while enabling the Minister (or a delegate) to act where there are reasonable grounds to believe that the person is allowing others to use the passports for identity fraud or other criminal activity, or that the applicant is simply not adequately protecting his or her passport.
...
89. Other examples include:

Australian citizens travelling to or from Norfolk Island; and
Australian citizens who request a document of identity instead of a passport; and
Australian citizens who are transgender, that is are living in the identity of a member of the opposite sex; and
Australian citizens being repatriated or deported to Australia or extradited; and
Australian citizens in circumstances when an identity document is required to permit travel to a country in which there is an Australian embassy, high commission or consulate to obtain a passport; and
Australian citizens to travel until the Minister (or a delegate of the Minister) is satisfied the person meets all the requirements (such as citizenship, no refusal requests, or full consent of all persons with parental responsibility for a child); and
Australian citizens whose travel the Minister believes should be restricted.

The intent was not to require the transgendered person to apply for a DOI - for then they would be "Australian citizens who request a document of identity instead of a passport". No, by section 60, a DOI would be issued to meet immediate travel needs, in response to a passport request.

And there there was a problem already. Instead of a full 3-year unrestricted DOI, this would be only to "meet immediate travel needs". Arguably, the intent was to have the situation similar to that of a DOI for travel to Norfolk island, unrestricted except for the 3-year validity, and the restriction that many countries didn't accept a DOI as adequate.

Worse, the notes went on to say

92. Validity periods are expressed as maximums and may be reduced depending on the circumstances of the applicant. In most cases, a document of identity is issued for a short-term or single journey. For example, for a document of identity issued to a citizen of another Commonwealth country, a maximum validity period of three months is normally sufficient. Documents of identity for travel to and from Norfolk Island have a validity of three years.

No exception for the Transgendered. Normally they would be issued a DOI "for a short-term or single journey."

Worst still (I'll be using that phrase a lot in this article), in VAK and Minister for Foreign Affairs and Trade [2002] AATA 588 (11 July 2002) it was held by the Administrative Appeals Tribunal that:

21. VAK has stated that he requires an Australian passport as he needs to attend to his business interests in Australia. He is the sole director of a company, which is registered in Australia and is the trustee of a property trust. The property trust owns and manages a number of investment properties in Australia. VAK and his children are the beneficiaries of that trust. VAK submitted that, in order to fulfil his duties as director, he needs to travel regularly to Australia to attend to matters associated with the investment properties. VAK also submitted that his failure to be able to attend to the proper management of the Trust could have a considerable detrimental effect on the benefits that his children could obtain under the trust.
...
36. Given that a document of identity is more circumscribed than a passport and is only given to an Australian citizen, who does not also possess the nationality of a Commonwealth country, in circumstances in which the issue of a passport would be unnecessary or undesirable, it would follow that it should, as a general proposition, only be given in circumscribed circumstances. It should not be issued in terms that would permit freedom of travel that equates with a passport even if for a shorter period of time.
...
37. On the material that I have been given, I am not satisfied that VAK should be given a document of identity permitting him any more latitude than one-way trip to Australia. His wish that he be able to bring his children to Australia and his wish to be in Australia to carry out functions as the sole director of a company do not lead me to a different conclusion. He may return to Australia with the document of identity given to him. Having done so, he may pursue his personal interests in Australia. Given that there is an outstanding warrant against him, it would be inappropriate to give him a document of identity that permitted him the freedom to come and go as he likes. That freedom will be restored to him in the form of a passport when he has dealt with the warrant. It follows that I consider that the decision of the authorised officer to issue a document of identity for a one-way trip to Australia was correct.

The standard of "immediate need" is set very high. To answer an arrest warrant meets the requirement, to conduct business that would benefit one's children is not.

I must assume this to be the case, as the APO did not consider my needing to travel Internationally in order to complete my PhD a sufficiently compelling reason, despite written testimony from my PhD supervisor.

A Transgender person, not having the option to address an arrest warrant, but merely by being what they are, may face considerable difficulty getting a DOI under any circumstances. To get neccessary surgery was deemed a reasonable excuse in my case, but to enable me to complete my PhD was not. To enable a Transgendered person merely to have a holiday would seem even less likely to qualify.

Thus Transgendered people are put on a par with criminals or suspects who have been refused passports, those with dodgy documentation, those who are being extradited or deported, those suspected of selling their passports, or suspected terrorists : "Australian citizens whose travel the Minister believes should be restricted.". They are to be kept on a tight leash, their travel restricted despite the International Covenant on Civil and Political Rights. Why? One can assume because it "enables the Government to balance the competing policy priorities", in which case one has to wonder what the policy on transgendered people is. Or one can assume that this is one gigantic train-wreck of unintended consequences to legislation of good intent.

Worse still (told you I'd be using that phrase a lot), the requirements to be issued a full passport after surgery are now more stringent. Merely having surgery is not enough.

A full validity passport in the new gender may be issued to a transgender person who has undergone gender affirmation surgery subject to the applicant meeting all relevant passport application requirements including:

* For applicants born in Australia – a birth certificate from their state/territory RBDM showing the gender of reassignment;

* For applicants born overseas and resident in Victoria for at least 12 months – a ‘Recognised Details’ certificate from the Victorian RBDM acknowledging their name and sex; or

* For other applicants born overseas – medical certificates from two registered medical practitioners (who must be contacted to confirm authenticity of the certificate) verifying that the applicant has undergone gender affirmation surgery.
...
People travelling overseas for the specific purpose of gender affirmation surgery may be issued with a limited validity passport with maximum validity of 12 months showing the intended gender, on condition that certificates supporting the application from two registered medical practitioners (who must be contacted to confirm authenticity of the certificate) are provided stating that gender affirmation surgery is scheduled to take place in {country} on {date}. Proof of travel could be requested if there are any doubts. The applicant must meet all the usual passport application requirements (i.e. identity, citizenship and entitlement) first.

The passport will have limited validity for one year. At the time of issuing the limited validity document, the applicant must also be provided with a copy of Letter (XX). The applicant can apply for a gratis full validity passport in their new gender before the limited validity passport expires.

Applicants must meet the requirements outlined in the section above.

Thus we have the absurdity that the Minister can only determine a Trangender person's Identity if they're unmarried (and thus able to get their birth certificates changed). Unless they were born overseas. And not resident in Victoria for 12 months.

There are confirmed cases of women getting an F type passport for their surgery - then being denied a replacement because they were unable to get their Birth certificates changed.

Worse still (last time, I promise), no less a person than the Acting Executive Director of the Australian Passport office has stated categorically, and in writing, that a person born overseas must not only be able to prove surgery, but "Under the Marriage Act, we can't have married people changing their gender" and thus must divorce. This despite him being in possession of a letter from the Attorney General stating exactly the opposite.

And thus by these steps have we entered the place on whose gate is written "Abandon Hope, All Ye Who Enter Here".

Well Bugger that (pardon the unladylike language). I'm not, I'm fighting.

Time for DEFCON 1.

Thursday, 7 September 2006

The Great Passport Fiasco : September 7th Edition

Or : Legal Square Pegs and Round Holes

From the Australian Passports Determination 2005

5.1 Period of validity

(1) For subsection 20 (2) of the Australian Passports Act, and subject to subsection (2), and sections 5.2 and 5.3, a passport ceases to be valid at the end of the day specified in the passport as the date of expiry.

(2) The maximum period for which a passport may be valid is as follows:

(a) subject to paragraphs (c) to (j), for a passport issued to an adult — 10 years;
...
(h) for a passport issued to a person travelling internationally for the purpose of gender reassignment, if the passport is issued to the person in the intended gender — 1 year;

There's the smoking gun. This is the subordinate legislation that they think applies, I think. I have to guess as the APO still has told me absolutely nothing.

All this so I get a passport for 1 year instead of 10, for the same price? Nah, couldn't be, could it?

Of course, since Medicare Australia says I'm medically female, even getting treatment for "moderate to severe androgenisation of a non-pregnant woman", to say that I'm going overseas for "gender reassignment" to female is at best contentious, at worst a nonsense. Yes, the operation I'm having is usually for gender reassignment, so it's arguable that it counts. It's also arguable that it doesn't, and if I can't provide acceptable surgical evidence of gender reassignment, it will be back to the old male passport again. Assuming they issue one of those.

This has actually happened to someone a few months ago according to a first-person report on a mailing list I'm on, which is why I'm determined not to give any benefit of the doubt. According to her post, the evidence of her overseas surgery was deemed "insufficient", her limited-validity passport confiscated on entry, and she was refused a new one with the appropriate gender.

A regular poster, she hasn't been heard from since. Yes, that probably means what you think that means. It happens sometimes. With luck, it's just a breakdown, and she's in hospital somewhere.

I had hoped that she was exaggerating. From my treatment by the APO, well, maybe, maybe not.

Maybe I could get a Document of Identity instead, if the APO deemed it was "un-neccessary or undesirable" that I be given a full Passport. They can be valid for 3 years, and in conjunction with a UK passport, would be adequate for my purposes. Travelling to the USA, for example.

Except that from the case VAK and Minister for Foreign Affairs and Trade [2002] AATA 588 (11 July 2002) It was held by the Administrative Appeals Tribunal that

36. Given that a document of identity is more circumscribed than a passport and is only given to an Australian citizen, who does not also possess the nationality of a Commonwealth country, in circumstances in which the issue of a passport would be unnecessary or undesirable, it would follow that it should, as a general proposition, only be given in circumscribed circumstances. It should not be issued in terms that would permit freedom of travel that equates with a passport even if for a shorter period of time.

That was under a previous Act, but it's arguable that it still applies.

But all this is guesswork, as the APO still hasn't told me anything.

So I've sent this off to my local MP, Bob McMullan:

From:
Ms Zoe E Brain
[address 1]
[address 2]

PH: [phone 1]
E-mail : zoe.brain@anu.edu.au

Dear Mr McMullan,

I'm a resident of your electorate, and I would appreciate your help.

Precis:

I'm about to be effectively exiled from Australia, despite being a citizen.

Summary:

I'm an Australian Citizen with dual UK/Australian nationality who has to travel overseas for necessary surgery not available in Australia no later than November 12th 2006. I applied for an Australian passport back in June.

The only written communication I have received from the Australian Passport Office back in early July 2006 was a letter demanding two separate gynacological examinations to ascertain exactly what surgical procedures I have undergone. This despite me informing them that I hadn't had any, the somatic changes were due to an Ideopathic medical condition.

I wrote to the Minister concerned, the Hon Alexander Downer on 26th July 2006 to try to get the matter cleared up. I have heard nothing from him since then, other than a formal recognition that my letter was received.

I wrote to the Director of the Australian Passport Office on 4th August 2006, requiring him to give me a written response within 28 days, in accordance with the Administrative Appeals(Judicial Revew) Act Section 13. I have had nothing in writing from the Director either, and the deadline is long past. The APO is in clear breach of the act.

As an Australian Citizen, I cannot re-enter the country without an Australian Passport, as I don't qualify for any form of Visa for my UK passport. As matters stand, I will be effectively exiled from my home, my family, and my 5 year old son from the 11th of November this year, unable to re-enter, as lacking any visa or Australian passport, no airline will carry me, my citizenship certificate notwithstanding.

Details:

I'm Transsexual, and by most definitions, Intersexed too. Certainly a victim of an astoundingly rare and spectacular medical condition anyway. Therein lies the problem.

As at the 26th July 2006 I had supplied to the Australian Passport Office, in response to repeated verbal requests for more data:

1. A passport application form, correctly filled out and checked
during a passport interview.
2. Citizenship certificate in my former name
3. Name Change Document (showing a male gender as that was on my unchangeable UK Birth certificate) showing both former and current names
4. Medicare Card in the name of Zoe Brain
5. Drivers License in the name of Zoe Brain
6. Photo Student ID in the name of Zoe Brain
7. Last year's tax return in the name of Zoe Brain
8. Medical letter stating Zoe Brain is undergoing hormone therapy
9. Letter from the Federal Attorney-General about my marital status to Ms Zoe Brain
10. Letter from my former place of work confirming my odd medical condition, and the radical changes that happened before any therapy commenced.
11. Bank statements in the name of Zoe Brain
12. Credit card Statement in the name of Zoe Brain
13. Letter of Offer for my PhD in the name of Zoe Brain
14. Expired Australian Passport showing a male gender and former name
15. Current UK passport showing a female gender in the name of Zoe Brain

Since then I have also supplied:

1. Written Confirmation from Medicare Australia that I am medically female, and undergoing treatment for "moderate to severe androgenisation of a non-pregnant woman"
2. A re-issued Citizenship Certificate in the name of Zoe Ellen Brain, indicating recognition of my status by the Department of Immigration, who do not issue new certificates for mere name changes.
3. A letter from my PhD supervisor at the Australian National University pointing out the necessity of Overseas Travel for me to complete my studies, and their importance to Australia.

According to advisors on the Passport InfoLine, my file has been marked with an instruction that no verbal information is to be given, all inquiries are to be referred to the Policy Section for a written response. Counter Staff at the APO in the R.G.Casey building have also been instructed not to give me any information.

How Can You Help

Right now, by you or one of your staff meeting me, or requesting further details, confirmation etc of my Kafkaesque situation. Extraordinary claims demand extraordinary evidence after all.

I expect some written communication from the APO at some stage, but I would be astonished if it did nothing but refer to the current Manual of Australian Passport Issue (not available to the public any more), and completely ignored both my individual circumstances and the provisions of the Australian Passport Act 2005.

These state that every Australian Citizen is entitled to a passport, provided only that the Minister is satisfied of their Identity and Citizenship, and that they are not fugitives or security risks under Section 3 of the Act. A passport has already been granted in the past where the Intersexed applicant, Alexander MacFarlane, was of indeterminate gender. Being unable to conclusively determine gender is no barrier to determining Identity.

Should my passport be granted in the near future, then all will be well, and no action neccessary. But when I can't even get an answer from the APO, I think this a most remote possibility.

If my application is rejected, then I will also be contacting Senator Gary Humphries about the matter. Hopefully a Bi-Partisan personal appeal to the Minister to exercise his discretion (not to mention some common sense) on purely Humanitarian grounds might succeed. The APO's delay - I won't say delaying tactics - have ensured that no avenue of legal appeal is open to me before my exile, and their problem goes away.

The longer I leave my operation, the greater the risk of Cancer in the abnormal organs. I have to leave in November 2006 : the only question is whether I will be allowed to return.

Yours Sincerely,

Zoe Ellen Brain BSc MInfoTech(Distinction)

I Am Not A Lawyer, either. I don't even play one on TV.

Right now, I can't even say for certain that a decision has been made or not, since I haven't been notified in writing about it.

By Miller and Minister for Foreign Affairs and Trade [2003] AATA 395 (30 April 2003) :

16. The definition of "decision" in the AAT Act is similar to that in subsection 3(2) of the Administrative Decisions (Judicial Review) Act 1977. In Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, the High Court considered the meaning of the word. Mason J, with whom Brennan and Deane JJ agreed, stated at 327:

... a reviewable `decision' is one for which provision is made by or under a statute. That will generally, but not always, entail a decision which is final or operative and determinative, at least in a practical sense, of the issue of fact falling for consideration. A conclusion reached as a step along the way in a course of reasoning leading to an ultimate decision would not ordinarily amount to a reviewable decision, unless the statute provided for the making of a finding or ruling on that point so that the decision, though an indeterminate decision, might accurately be described as a decision under an enactment.

His Honour stated that "Another essential quality of a reviewable decision is that it be a substantive determination": (1990) 94 ALR 11 at 23-24. (170 CLR 321 at 337)

And I can see nowhere where the APO can be forced to make a decision in a timely manner. I can't even see if the AAT has the power to compel them to do so. Perhaps the Federal Court, but there it will cost an estimated $30,000.

Is it incompetence or malice? It doesn't matter, the effect is the same. All I can do is wait for the APO's reply, should they manage to send one eventually.

Friday, 6 October 2006

The Great Passport Fiasco : A Victory For Common Sense ?

In a Previous post, I wrote:

...someone had the Bright Idea that a document of limited validity, good for 5 years (later changed to 3) not 10, and not considered adequate as a passport by many countries, but with the great virtue that it made no statement about the holder's identity, could be used. Such a document existed, the Document of Identity, or DOI. In response to a passport application by someone who was evidentially transgendered and pre-operative, A DOI would be offered as an alternative to an arguably useless M type (for someone identifying as female) passport. No statement would be made about the holder's gender as far as the Government was concerned, and no admission that the holder was "really" of a gender other than the one they identified as would be required.
...
Overall though, it was a humane compromise: not quite as good as a full passport, but often good enough, and issue of it avoided all sorts of legal complexities and a possible test case about gender that the Government didn't want. The Re Kevin decision hadn't gone their way, and who knows what the Courts may find? A Transgendered applicant would be faced with the question of whether they wanted to fight for years, and have a possibly financially devastating loss and lose existing rights, or accept the compromise. By applying for a passport in an F identity, they asserted their right to be considered that, and the Government made no reply either way - just offered this alternative.

And the option of a 12-month validity F passport was still there for SRS, should they wish to travel for the operation to a country where a DOI was inadequate.
Not perfect, but the hardship caused would be small. Not as good as the UK policy, of issuing a correctly gendered passport on evidence of living permanently in the new gender, but good enough.
...
The intent was not to require the transgendered person to apply for a DOI - for then they would be "Australian citizens who request a document of identity instead of a passport". No, by section 60, a DOI would be issued to meet immediate travel needs, in response to a passport request.

And there there was a problem already. Instead of a full 3-year unrestricted DOI, this would be only to "meet immediate travel needs". Arguably, the intent was to have the situation similar to that of a DOI for travel to Norfolk island, unrestricted except for the 3-year validity, and the restriction that many countries didn't accept a DOI as adequate.

That was what I thought should be happening - but wasn't. I now have evidence indicating that indeed, this was the intent of the Legislation.

Here it is, received in this morning's mail, just an hour or two ago:

Dear Ms Brain,

Thank you for your email dated 13 September 2005 to the Minister for Foreign Affairs. Mr Downer has requested that I respond on his behalf.

As advised previously, persons born overseas who have undergone gender reassignment surgery, and who are applying for a passport in their new gender, are required to provide medical certificates from two registered medical practitioners, confirming they have undergone gender affirmation surgery, that they are 18 yeasr of age or over and unmarried.

As you do not meet these requirements but have advised that a Document of Identity (DOI) would satisfy your needs, I am very pleased to advise that I am able to approve the issue of such a document valid for three years (the maximum period permissible) to enable you to meet your commitments for travel associated with your medical condition and PHD studies. The Document of Identity will not record your gender.

In order to set arrangements in train, you will need to acknowledge the advice contained in the accompanying letter by signing the attachment and forwarding the same to the Canberra Passport Office. Once the Document of Identity has been issued the fee of $38 will be deducted from the sum we are holding and the balance will be refunded to you.

Thank you for bringing your views to the attention of the Government.

Yours Sincerely
Ross Tysoe
Assistant Secretary
Passport Client Service Branch

Attached Letter:

Dear Ms Brain.
Passport Application
Thank you for your recent application for an Australian passport. I refer to our subsequent advice on the possible issue of a Document of Identity.

It is important to note that the following information about issuing you an Australian Document of Identity without the sex/gender section being displayed. While this will alleviate unnecessary embaressment to you when travelling, it is important for you to be aware that:
some countries do not regard a Document of Identity as a valid travfel document.
custioms/immigration authorities in some countries may view the possession of a Document of Identity in lieu of a passport with suspicion and consequently delay or harass the bearer at entry points; and
should customs officers decide to conduct a body search there is a very real risk of embarressment to the bearer.
If you agree to be issued with an Australian Document of Identity could you please sign and return the enclosed acknowledgement as soon as possible etc etc etc

Yours Sincerely,
Ross Tysoe,
Assistant Secretary
Passport Client Service Branch

I'll be doing that straight away. Now, I actually don't need a DOI at this point, because Immigration granted me an Australian Declaratory Visa, good for 5 years, and with my UK passport I'm not subject to the 3-year DOI's strictures. Nonetheless... I wish to set a firm precedent. A precedent stating that for Transgendered people, the DOI really is a semi-passport, and that this situation is distinguished from VAK and Minister for Foreign Affairs and Trade [2002] AATA 588 (11 July 2002). That the circumstances are not the same as the general ones, and that to paraphrase Miss S A Forgie Deputy President of the Administrative Appeals Tribunal, "It (The DOI) should be issued in terms that would permit freedom of travel that equates with a passport for a shorter period of time.".

There's still some work to be done: why should people born overseas have to be unmarried if they are to get a new passport? But that is for the long term, and another ... negotiation (I only fight when I'm cornered). Right now, the situation is discriminatory, but if this precedent is set, it can be lived with as a reasonable, and even arguably humane, compromise. It's Discrimination - but it's not blatant Persecution.

If a precedent is set, and in the general case, transgendered people will always be offered an unrestricted 3-year DOI as an alternative to a misgendered passport.... then it's a victory. Not mine though. One for Common Sense, and one for the Australian Passport Office, who will no longer look like absolute Dills.

Friday, 4 May 2007

Year Two

Monday, 20 June 2011

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.
...
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....
...
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.
...
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.
...
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.

Monday, 2 November 2009

Media Release

Further to a previous post, I'm a member of Sex and Gender Education Australia, and have given presentations to University students with Stefanie Imbruglia in the past.

MEDIA RELEASE: 30 October, 2009: For immediate release. Sent on behalf of Stefanie Imbruglia and Sex And Gender Education (SAGE). AUSTRALIAN PASSPORT OFFICE ISSUES APOLOGY TO TRANSSEXUAL WOMAN Department of Foreign Affairs & Trade (DFAT) agrees to issue appropriate passports to sex and gender diverse people and changeoffensive terminology in its training material to be more inclusive of diversity. In July 2007, Stefanie Imbruglia, a 42-year-old transsexual woman (cousin of singer Natalie Imbruglia), applied to the Australian Passport Office to get a female passport so she could travel to Thailand for Sex Realignment Surgery. While she was registered as male at birth she had been living as a female for two years. To her amazement she was told by the passport officer at the counter that she would only be allowed to travel on a male passport even though she had lived as female for two years and had letters from her medical specialists confirming she had been undergoing treatment for sex and gender dysphoria. Over the past 20 years the Australian government has issued a one-year limited passport for people registered male at birth, who lived as transsexual females who were going abroad for surgery. Under the Howard government the Minster of Trade and Foreign Affairs rescinded that right secretly in 2007 without any consultation with any specialists in the field, service providers or any members of the sex and gender diverse community. It is dangerous for transsexual women to have to travel abroad on male passports as they could be subjected to stop and searches, intimidation, arrest, violence and embarrassment. Stefanie was subjected to ridicule by a passport officer, who insisted on calling “Sir” even though she had on a skirt and jacket and presented as female. When Stefanie arrived in Thailand for her surgery at the airport she was stopped by a passport control officer in front of all the other passengers on her plane and called to account for the discrepancy between her female appearance and male passport. The incident was highly embarrassing for her and forced her to have her medical history disclosed to the public against her will. Exactly what she warned the Australian DFAT would happen, did happen. On returning to Australia, after surgery, Stefanie as a member of SAGE (Sex And Gender Education), a political lobbying group for sex and gender diverse people, decided to bring a case against DFAT with the Australian Human Rights & Equal Opportunities Commission (HREOC) now the Australian Human Rights Commission) AHRC). The case was that DFAT had knowingly placed Stefanie in danger by refusing to issue her with a passport that reflected her identity. It was in Breach of Article 12 of the International Covenant of Civil and Political Rights (ICCPR) under the Australian Human Rights Commission Act 1986. The United Nation’s convention on human rights requires countries to issue citizens with documents of safe travel in and out of their countries. Stefanie also filed a complaint that DFAT had been guilty of sex discrimination under the Sex Discrimination Act 1984. Since it had issued her with a female passport on her return from Thailand but refused to issue her with one before she went, it had discriminated against her because she presented as the same person on both occasions. The complaint also encompassed the way she had been mistreated by the officer at the passport office. Over the ensuing two years the AHRC sought conciliation between the two parties. In the interim the AHRC had published its project in 2008 that looked into the human rights difficulties faced by people who were sex and gender diverse and concluded that many government departments needed to adopt a more positive and accommodating attitude to all sex and gender diverse people. For far too long this group of people has been excluded from fully taking part in society as government bureaucracy has failed to keep up with scientific knowledge and human rights. Within the past few weeks the conciliation between both parties has drawn to a close to end the case. What DFAT agreed to: 1. A complete unreserved written apology to Stefanie for the way she had been treated. 2. The restoration of the right for people going abroad for sex realignment surgery to be given a passport in their appropriate sex and/or gender. 3. The recognition that some people who are intersex, transexed, transsexual, transgendered or any of the other sex and gender diverse identities may not be suitable to have genital surgery. They may, however, live in their preferred sex and/or gender roles. 4. That such people upon presentation of a letter from a medical professional would be able to have a permanent passport in their needed sex and/gender. Not all people are able to change their birth certificates or cardinal documents to reflect their identity. Each case would be considered on case by case basis. 5. That the phrase ‘medical professional’ would be interpreted as meaning a doctor, gynaecologist, endocrinologist, urologist, psychiatrist, endocrinologist, psychologist, psychotherapist, counsellor, sexologist, and social worker; in accordance with international standards of care for helping sex and gender diverse people. 6. An alteration to DFAT’s training material for employees that lumped all sex and gender diverse people under the umbrella ‘transgender’, which is offensive to many sex and gender diverse people. They changed their terminology to address Sex and Gender Diverse people’s needs and allowing those people to identify as they needed under the Sex and Gender Diverse label without discrimination. 7. The removal of an offensive training handout to employees that gave wrong and misleading information about sex, gender and sexuality diverse people to its employees. 8. That people presenting with no sex or gender on their cardinal documents may be considered for a passport that does not state sex or gender. This clears the way for parents of intersex children who do not wish to be forced into registering their children as male or female when that child may be strictly neither or both. Some adults identify as neuter and wish their documents to reflect that status. Stefanie wishes to thank AHRC for its part in brokering the conciliation, DFAT for readjusting its position to afford equal human rights and appropriate passports to all sex and gender diverse people, to SAGE for its assistance in bringing the case before AHRC, and Dr Tracie O’Keefe DCH, ND, for her assistance in helping Stefanie bring the case. More information can be found on Stefanie’s website www.stefanie888.com FOR MEDIA INTERVIEWS AND COMMENTS: Stefanie Imbruglia: Ph 0414 835 352 Dr Tracie O’Keefe, DCH, ND (SAGE spokesperson): 02 9571 4333 or 0403 398 808. SAGE website www.sageaustralia.org

I'm more into education than activism. But sometimes the authorities won't let you not be an activist.

Here's what I wrote when I was in the midst of my own fight, but at last it looked like I was going to win after all, if it came to a full-blown court case:

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
inconceivable 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. Revenge is not in order, but Recompense, and Retribution, is. If I
can swing it.

A good Barrister has been recommended. Hopefully it won't come to Court. I have no
wish to see people suffer, but I do wish to give such aversion therapy that they
never, ever, do anything like this again.

Steph's fight was over a different issue - things got worse before they got better, and her treatment appears to be in direct retaliation for us not lying down and surrendering. But yes, those who persecuted us are no longer in a position to do so, and DFAT has had a cultural change, even if it took years of legal "aversion therapy". They've genuinely reformed.

Wednesday, 13 September 2006

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.

A.E.Brain

Friday, 10 August 2007

Please, Please Help!

Saturday, 16 September 2006

The Road to Hell

Thursday, 7 September 2006

The Great Passport Fiasco : September 7th Edition

Friday, 6 October 2006

The Great Passport Fiasco : A Victory For Common Sense ?

Friday, 4 May 2007

Year Two

Monday, 20 June 2011

Passports - The Final Chapter?

Monday, 2 November 2009

Media Release

Wednesday, 13 September 2006

The Great Passport Fiasco : September 13th Edition

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