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.


Lloyd Flack said...

I just got a reply today to the letter that I sent complaining about your treatment.

All it said was that they couldn't comment because of the Privacy Act but that they would be replying to your request shortly.

Anonymous said...

I really don't think this is a victory at all. A Document of Identity is not acceptable for travel to many countries, particularly the US.

This is a real problem if you want to go overseas for other kinds of surgery not recognised by the Department. e.g. FFS.

Zoe Brain said...

Yes, that does rather restrict one's FFS options. No Oosterhaut, No Speigel...etc etc.

That rather increases the importance of fighting this thing.

I wonder if they'd accept that we were a persecuted minority, since we are denied passports, and allowed temporary entry on that basis? May be worth talking to the US Embassy about that.

God this makes me embarressed to be Australian. We've got to fix this.

Anonymous said...

It's not acceptable or a victory at all. You have read the Australian Passports Determination 2005; it is unclear in that it effectively states that transgender people should not receive passports but Documents of Identity. It does not define precisely what is meant by transgender; thus one interpretation of the Determination means that effectively any transgender person (whether preoperative or not, because of the ambiguity in the Determination) cannot receive a passport. Whether they are an Australian citizen or not. That is absolutely repugnant to me.

What is even more repugnant is that it effectively equates transgender people with people who commit "identity fraud or other criminal activity", and people being "repatriated or deported...or extradited".

Even from a purely legislative standpoint, the actual passports law doesn't state anything about transgender people, and it is unclear what legal power the Determination has.

Documents of Identity may enable you to travel without a sex indication on the document. This is true and is a Good Thing, but like others mentioned, and even Tysoe mentioned in the letter you received, if the interpretation mentioned is correct and transgender people are effectively forced on to Documents of Identity, then it means that transgender people will not be able to travel to places where a passport is accepted and a Document of Identity is not, plus they may be harassed in the ways that were described. This is purely discriminatory.

Documents of Identity are unequivocally not a solution to the needs of transgender people.

Anonymous said...

Hi Zoe, I had to get a DOI, as the 12 month temp one is no longer available, and I did not want my passport to list me as male. I will be having my surgery with Dr suporn on the 29th of May in Thailand, and as fair as I can find out a DOI is valid there.