Wednesday, 4 October 2006

Outgoing Mail

As opposed to Outgoing male I suppose...

Another letter to some Politicians. These ones involved in actively lobbying for a comprehensive anti-discrimination Act.

Zoe Ellen Brain
[address 1]
[address 2]

Kevin Rudd MP
Nicola Roxon MP

3rd October 2006

Dear Mr Rudd,

I wish to bring to your attention the very real problems faced by Transsexual people wishing to travel overseas.

The problem is caused by the explanatory notes to the Australian Passports Determination 2005*, which states (with no reason given) that it is "unneccessary or undesirable" to give Trangendered people passports.

By the explanatory notes, the following people are to be treated equally:

* Australian Citizens who cannot be issued a passport due to an outstanding arrest warrant, or being suspected of passport trafficking for having "lost" so many
* Australian Citizens who are Transgendered
* Australian Citizens being deported, repatriated or extradited
* Australian Citizens whose travel the minister believes should be restricted

The effective definition of "Transgendered" by the Australian Passport Office includes everyone who has not had their Australian Birth certificate altered, all post-operative people who are married, all people whose medical health or financial status precludes surgery, and many people who are Intersexed.

Such people may be granted a Document of Identity, good for one journey, but only if they apply in their originally registered gender, and can find a guarantor to swear that this is their "actual" gender. This is impossible for some Intersexed people, and for those whose medical history has been kept secret.

By caselaw**, a DOI will only be issued for "good reasons" such as to get neccessary surgery or to allow travel back to Australia to answer an arrest warrant. It will not be granted for business purposes, for example. I required multiple re-entry to Australia to attend Academic conferences necessary for my PhD (a fact attested to in writing by my PhD supervisor), but was told this would not be granted. Exceptions to this general case - those travelling to Norfolk Island, and those unable to obtain a Commonwealth passport - are explicitly stated in the explanatory notes. All the rest - wanted suspects, deportees, extradited criminals, people refused a passport due to security considerations or suspected passport traffickers, and Transsexuals - are treated the same way.

In my own case, I was unable to get a DOI anyway because of my medical condition - medically I'm female, according to Medicare Australia, despite the UK "boy" birth certificate, so could not apply as a male. To apply for a DOI, I would have to purjure myself, and leave both myself and my guarantor open to prosecution (based on the medical evidence) under the Australian Passports Act 2005***, or conversely, under the Foreign Passports (Law Enforcement and Security) Act 2005****, as my UK passport states that I'm Female.

As a Dual UK/Australian national, I was able to leave Australia any time I liked, but not able to return to my family due to the APO's travel restrictions. As I require surgery of a type only available overseas, I was to be effectively exiled from Australia, not despite, but because of, my Australian Citizenship. As an Australian Citizen, I don't qualify for a re-entry visa on my UK passport, unlike permanent residents.

I applied for an Australian passport on June 4th 2006, well before the scheduled date of surgery on November 15th 2006, and still don't have one. Not only that, but I've been informed in correspondence with the Commonwealth Ombudsman that no appealable decision has been made. A passport hasn't been refused (a decision I could appeal through the AAT) - they just won't issue one.

A phonecall from a representative of the APO made it quite clear : in order to get any form of Australian Passport, I would have to divorce. The exact words were "Under the Marriage Act, we can't have people who are married changing their gender". The APO is in possession of advice directly contradicting that assertion from the Federal Attorney General, advice they have chosen to ignore.

Ironically, for the purposes of the Marriage Act 1961*****, my UK passport showing a Female Gender is adequate to verify my Identity for the purposes of marriage.

Fortunately, the Department of Immigration and Indigenous Affairs staff were horrified when they saw the correspondence from the APO. They have gone out of their way to help, issuing me both with a new Citizenship Certificate (which was ignored by the APO) based on the medical evidence, and at the last moment with a rare emergency administrative document which will allow me back in the country. I was lucky - most people would not have this loophole to turn to.

Perhaps the original intent was to allow Transgendered people - including fulltime crossdressers - an unrestricted "gender-neutral" travel document (albeit one not recognised by many countries) as an option, as an alternative to a passport showing a gender inconsistent with their appearance. The actual practice is that many transsexual Australian Citizens are now forbidden to travel overseas. Other transsexual Australian Citizens are merely forbidden to return. Unbelievable, isn't it? But I have the evidence in writing, and the explanatory notes to the Australian passports determination 2005 are available for all to see. I also kept an online diary, a weblog******, of events as they happened.

Transgendered people - especially Transsexuals - are subject to harrassment, even violence. If Transsexuals have their medical condition treated, they face the loss of family, of income, of friends. All too often their difficulties seem insurmountable, they give up, and lose their lives instead. Usually the prejudice they face is covert, hidden and "plausibly deniable". It's unusual and dismaying that the law of the land overtly and unashamedly singles them out for blatant persecution here. This must not stand. It is unjust. It is unfair. It is Un-Australian.

Please put and end to it, and as soon as possible.

Yours Sincerely,
Zoe Ellen Brain BSc MInfoTech(Distinction)


* Australian Passports Determination 2005 Explanatory Notes Section 6.3 para 89

** VAK and Minister for Foreign Affairs and Trade [2002] AATA 588 (11 July 2002)

*** Australian Passports Act 2005 Division 2 Section 29 Making false or misleading statements in relation to Australian travel document applications

**** Foreign Passports (Law Enforcement and Security) Act 2005 Part 3 Section 18 Making false or misleading statements in relation to foreign travel document applications

***** Marriage Act 1961Division 2 Section 42.(1).b.(iii)


And after reading Petro Georgiou's Speech about putting the Liberal back into the Liberal Party, a copy to him too. I've voted Liberal since I was 18. We'll see if the Liberal party can return to its roots. Well, Hope springs eternal in the human breast. And now I have two of those, at last!

1 comment:

Anonymous said...

The other team is proposing a half-measure:

The draft is interesting for what it actually says. Sadly, GLBT people have too often trusted the platitudes of the left without looking at their deeds.

I'm more encouraged by liberal Liberals than the usual suspects in other parties. The South Australian cabinet, which includes a Catholic monsignor, is a case in point.