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AUSTRALIAN LAW AND THE TRANSSEXUAL PERSON
PASSPORT AND OTHER PROBLEMS IN AUSTRALIA


I have some serious questions and reservations concerning State and Federal laws as interpreted with regard to Transsexed Australian Citizens who were born abroad.
There are additional concerns with regard to our Human Rights.
As a Transsexed person we are discriminated against in many ways if born in Australia.
As a Transsexed person who immigrated to Australia, we are discriminated against in many more ways, even though we have taken out citizenship and are therefore supposedly equal to those born in Australia, before the laws of the Country. There is a total lack of consistency with regard to sex identifiers.

  • Queensland is now the only State to have a sex on their drivers licence, others do not.
  • There is no sex identifier on the Citizenship Certificate
  • There is no sex identifier on Form 283 from the Department of Immigration and Citizenship. This is the Certificate of Evidence of Resident Status (CERS). It is very important if you entered the Country as one sex and are now the other.
  • Both of the above are backdated to permanent entry into Australia or when the Citizenship was taken out, but no mention of sex. Are the original details still available, if required by Government departments? I understand that they are retained on the ‘Back screen’ for reference by certain groups, such as Police and Corrective Services.
  • These are all very important documents in order to establish our new status, especially after surgery.

We are expected to live within the laws of this Country, but we are not afforded the same protection under those laws. It is no longer good enough to provide evidence of surgery in order to amend your Citizenship Certificate. You now have to provide an amended Birth Certificate to be able to amend the Citizenship Certificate. The amended Citizenship Certificate does not display sex, so you maybe required to furnish other proof in order to amend your passport. These are then required in order to be able to amend your Australian passport. The APO accept an amended Birth Certificate for those born in Australia and an amended Citizenship Certificate for those born abroad as well as an amended Birth Certificate if offered by the Country of birth. The Birth Certificate and the Citizenship Certificate are ‘Cardinal Documents’ nothing else is acceptable.

Before surgery, that is “Pre Op” we have all of our documentation placed in limbo. There are articles that can be amended before surgery, such as, Change of Name, Drivers Licence, ATO, Electoral Office and Financial Institutions. The main documentation is denied us until after surgery, when it really becomes a minefield. Those that can only be amended after surgery are Birth Certificate, which is the only document that falls within the State or Territory legislation, if born here. If born offshore, then it is your Country of birth that has to amend your Birth Certificate. Passport, Citizenship Certificate, confirmation of Permanent Residency and Health Insurance Commission central records are all Federal government departments. If born offshore, this is when the real problems surface!

A Transsexed person born in Australia can change all of their documentation after surgery, providing they are over 18, single and divorced. Those born offshore are denied this right in various forms, even if they have had surgery. We understand that only our Country of birth can amend our Birth Certificate, but what if that Country does not offer this facility?

Are we to be placed in a position of being a second class citizen until this option becomes available? Are we to be denied the right to travel outside of Australia because we cannot amend our passport. If we are granted a passport in our new name and photo, then the sex identifiers are not shown in our new sex. This creates a very difficult situation to be placed in, if we do wish to travel abroad. A female name, female photo, but male sex identifiers displayed all over the Passport in the identity box and in the area which is scanned. On this type of passport there appears to be many more letters and numbers in the area that is scanned. Is this extra detail about the person’s change of sex/gender. I have since been told by Hobart office that this is to do with the new series of passports, as there is more information contained in them. This can cause much hurt and misunderstanding when going through Customs/Emigration on leaving this Country, and certainly on entering a foreign Country.

If born in Australia, you can apply for a Document of Identity (DOI), this also applies to those born offshore, but are now residing in Australia and are an Australian Citizen. This document does not display any sex and is only a temporary document to get you offshore and back again. You will have to apply in person for this document at a Passport Office, as the Post Office cannot deal with this request. Also, an appointment is required, so that could take some time in eventuating. If you were born offshore and have only your Country of birth passport, then you will need to apply for a re-entry visa, or an ADV, so that you can re-enter Australia after being abroad. Are we still in the same category as those being expelled from this Country, as we are Transgender, or has that been removed? We now understand that the ‘Limited Validity Passport (LVP)’ was re-introduced in 2008.

We then have the situation of a person who immigrates to Australia who has already undergone surgery, but this surely is not recognised as all documentation would have been altered. The question is, can immigration have access to those old details of previous sex and name. In the case of UK citizens, they can amend their Birth Certificate and Passport, even though they have not undergone surgery, they can even marry, so how would they be looked upon here, where surgery is a must. We have to consider this, as we have found that our previous details are accessible when applying for a re-newel of our passport.
QUESTIONS

  • In the eyes of the law, what is the difference between being born an Australian Citizen as to being granted Australian Citizenship if you immigrate here and take out Citizenship
  • I understand that if born in Australia you have an Australian Birth Certificate issued by the State or Territory that you were born in. Is this to be considered as the alpha document
  • Surely, once granted Citizenship you are the equal to those born here, as you are obliged to pay taxes and vote among many items.
  • Perhaps I am being simplistic, but if we are all technically Australian Citizens, why are those born offshore discriminated against
  • This really is the classic “Please explain situation” Can you please explain why as immigrants we are expected to accept and abide by the laws of this Country, but even though we have taken out citizenship we appear not to be accepted as equals at law to those born here? The same laws apply, yet we are denied the rights that are afforded to those born Australian!
  • Does it mean that we have to denounce our Country of Birth (Dual citizenship) in order to be recognised
  • Once recognised as Citizens, why are we made to go through all of the problems that we are presented with? What is the value of becoming an Australian Citizen, if we are not recognised at law when we ask for the same recognition as those born here
  • The Federal Government expect us to become Australian Citizens after a certain period of time and now even test people’s understanding of the Australian way of life. If the test is passed, we then receive a Citizenship Certificate, but is it really conferring equality at law, or is it just a meaningless piece of paper?
  • We have to divorce, be able to prove that we are single, or our partner is deceased in order to be able to change our documentation. If we cannot prove that we are divorced, we are considered as constituting a same sex relationship. However, it is OK for Government Departments to change our status from Married to same sex relationship if we do not divorce, and in so doing take away all of the rights we were entitled to as a married couple This has now been amended under the ‘Same Sex Act’, and we are no longer deemed to be a same sex couple by Centrelink and other Agencies. According to the federal Attorney-General’s Office, if we stay married after surgery, then our marriage is still legal!
  • Partners are discriminated against if they are born in Australia or abroad. They suffer discrimination of the worst kind, as they are not the ones who committed any wrong, other than to stay married to their Transsexed partner. They are taken from a marriage situation, and placed by Government Departments into a same sex relationship. None of this is of their asking, as they still regard themselves as married at law. There has been no divorce. At least this circumstance is consistent! This has also been covered in the ‘Same Sex Act’ so all their rights under the Marriage Act 1961, have been returned. Even the ‘Defined Superannuation’ is now back.
  • The laws once enacted appear to be set in stone. They can be amended, but that appears to be a rather long drawn out and convoluted approach to the problem. Amendments are useful, in the context that they take a “Dead law” and enliven it and give that extra cover at law. A precedent is not as useful, as it can be construed in different ways in different Courts and by different Judges. The down side of using a precedent is that not too many of us have the funds to pay the Court fees, let alone legal representation. Even if granted ‘Legal Aid’ not too many of us are willing to stand in court and declare what we now are and that we have undergone surgery to change our sex.
  • It takes years to have an amendment or new laws enacted and added to the statute books, it is far more preferable to appearing in Court, as usually all paperwork can be obtained either by post or via a web site.
  • During this time of inactivity at law, the Transsexed community will continue to suffer from Frustration, Depression and for many the ultimate way of ending their agony, this being due to a seeming lack of understanding, compassion and empathy
  • If you want consistency of word and law, then create us all equal before those laws

I have tried to layout the problems that we encounter in the following Submission. Yes, it is long, but then so are the problems caused, the time taken in getting answers in order to understand what we have to undergo in order to receive either a new, or an amended passport, or other documentation that we are required to amend.

These are the problems of recognition that confront Transsexual people born in Australia and offshore, but now residing in Queensland and the rest of Australia!

This is a report into the paucity (smallness of quantity) of understanding of the immensely ambiguous (open to various interpretations) laws to cover the Transsexual community, especially those born offshore.

This is an exercise to show how the current laws do nothing to help Transsexual people! What it has shown is that we are humiliated, frustrated, depressed and our problems are not understood, or taken seriously, we feel that much of this is an exercise in futility. We suffer from continual changes of legislation, none of which makes our life any better, or easier. To say that we face a minefield in trying to understand these laws is a huge understatement of the facts. Since 2003, there has been so many changes, none of which we have been advised of, and only find out about when we come to apply for a passport, or to re-new a passport. Most legislative changes are not advertised, and those that affect the Transsexual are not shown! The one year passport that was offered to Transsexuals in order to travel abroad to look at costs and facilities for surgery, has been replaced by a DOI if born in Australia or an Australian citizen by undertaking citizenship. If you have not, then you face the problem of travelling on your passport issued by your Country of birth, and having to apply for an ADV, so that you can re-enter Australia.

The sheer scale of what has to be done, especially for those not born in Australia can be frightening in the amount of paperwork that is involved. It also involves much time and cost! If people are not used to dealing with these types of problems, then they just do nothing about them, unless able to be guided by someone, who is not going to charge them exorbitant rates for their time.

It would appear that we need to have “proof positive of our permanent residency in Australia” This is required in order to start the process when we apply for a “Recognised Details Certificate” in both Queensland and Victoria. My understanding is that, in order to prove your permanent residency, you must apply to the Immigration Department under their Freedom of Information (FOI) to establish your permanent residency, and to also alter your details of entry. We now understand that you can use form 164 from the Department of Immigration and Multicultural Affairs. If accepted, you then receive form 283 which is issued in recognition of your changed status and back dated to when you were granted permanent residency in Australia. Form 283 is your “Certificate of evidence of resident status” This is at a cost of $70.00. Now increased to $100.00. Also the Sydney Immigration Office confirmed, that it is imperative to have the CERS in place if we came into the Country as one sex, and are now the other

If you enter the Country as a child on your Parent’s passport do you have separate Residency Status as a child. If later you are transsexual and wish to have a Certificate of evidence of resident status, do you apply in the normal way to have your details amended? Also if you arrived under the 10 Pound scheme how would that affect your residency Status? These are all questions that need answering to confirm that we are legal emigrants. We have now found out that you need to supply the details of ship or flight, where you landed and what was the date of arrival. One friend was told “If you have not made a valid application and if you are still in Australia after that date (word /no date) you will become an unlawful non-citizen on date (again no date)
If you are now Female, then those details have been altered. Without those details being altered, you will still be registered as Male, and all of your old details will show up. Would this mean that you are illegal until those details are amended, from Male to Female? Also what constitutes recognition of permanent residency? If you have already changed your Citizenship Certificate and Passport, does this mean that your records with Immigration have been amended to show your new name and sex? I query this, as the letter from the FOI department sent to a friend, states “You should be aware that this decision affects only those records held by this Department and not those of any other organisation” We now know that you must apply to each department.

What then has to happen, is that you then have to inform all other Federal and State and Territory departments to alert them to the fact you have not only changed your name, but sex as well.

  • In July 2005 under Section 8 of the Passport Act there were alterations which were further amended and tightened in May 2007 . We are now back to square one, as of 2008
  • Huge discrepancies in how those who remain married after SRS are given Passports. Some were altered before the new rules came into affect, but others were after those changes. Some are Post Operative, and others are Pre Operative! How can this be? This has been further exacerbated by the decision handed down by the AAT in the case of Abrams. Can others follow this path if they are in the same situation? Yes they can, on a ‘Case by Case Basis’ and many have. The farcical is now accomplished, as they would be able to amend their Passport, but not their Birth Certificate
  • We hope that we can eventually obtain a Recognised Details Certificate (RDC) in Queensland, in order that we can then apply to our Country of birth to amend our Birth Certificate, which once issued, then allows us to apply for all other documentation to be amended in Australia. The RDC fully supports our change of name and sex and affords us more cover at law. A letter supporting our request for a RDC from the Registrar-General and the Commissioner of Anti Discrimination to the Attorney-General to this affect was rejected.
  • We have also found that when we come to re-new our Passport, the details displayed are those of our previous name and sex. We understood that this could not happen, as all details were changed on our new Passport, but have been told that this is “Normal practice” How can this be, when that person no longer legally exists, or do they?
  • I have now been told of the following by someone born in the UK who has not been able to amend her Birth Certificate. However, she has been able to change her Australian Citizenship Certificate and also her Australian passport. The passport is in her female name and photo, but with an M for male in the box and also in the detail where it is scanned.
  • This is also so for another born in Australia. Both have been issued with a 10 year passport which contains these mixtures of sex identifiers. To travel abroad under these circumstances is the cause for much concern. I am still awaiting answers from the APO on these matters.

SUMMATION

After reviewing the problems that Transsexual people incur, it is painfully obvious to us, that because of our many and varied problems, we are placed in the ‘Too hard basket’

It appears that from day one, our problems have never been fully understood, or, even been afforded the courtesy of being understood by the various levels of Government, that really determine if we are to be allowed to live our lives on equal terms with society at large.

I would state that our problems are caused because of the very lax manner in which those problems, if realised, have been addressed. The biggest factors would have to be the lack of consistency of both Law and word.

It is to be hoped that those who have talked of consistency will now endeavour to put that very powerful word into use when looking at the laws and wording used in Australia, with regard to Transsexual people.

We are stripped of our basic rights and have to fight over time to have them replaced. Due to the current laws, many cannot replace all of those rights if they remain married, and nor can their spouses, who have also had their rights wrongly taken from them. Now partly covered, by the APO and also under the Same Sex Act. The deeming of us being a same sex couple if we remain married after surgery has been revoked. I understand that there is no law in Queensland that can force us to divorce.

This of course does not take into account those unfortunates who cannot have surgery in order to change their documentation, due to lack of funds or because surgery would be life threatening. They are therefore consigned to a life of living in their true gender, without being able to fully become the person they know they should be. Non surgery is now accepted by DIAC. DFAT will now accept those who cannot have surgery, as it would be life threatening.


Yours faithfully,

Kathy Anne Noble

President Changeling Aspects.
In affiliation with Agender (Aust) & Transbridge
28-08-2009

 



Changeling AspectsIn affiliation with Agender-(Aust) & Transbridge-(Townsville)

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