Sex and gender diverse people win passport victory

Old passport rules resulted in SGD people being deported, refused accommodation and refused vehicle hire.

Australia introduced new rules on September 15 allowing people to nominate their gender as male, female or indeterminate on their passport. Sex reassignment surgery is no longer a precondition for nominating a passport gender different from the one on your birth certificate.

Sex and/or gender diverse (SGD) people are made up from many differing groups. This includes people who are intersex, transexed, transsexual, transgendered, androgynous, without sex and gender identity, cross dressers and people with sex and gender culturally specific differences. Given this diversity, the changes to the passport rules are likely to have different implications across the community. Yet the new rules will have wide-ranging positive effects on many SGD people’s lives.

People will hopefully no longer be denied visas or detained at airports because the gender on their passport does not match their gender presentation. Activist Conor Montgomery told Green Left Weekly that the old passport rules resulted in people being deported, and refused accommodation and vehicle hire.

Activist Tracie O’Keefe of Sex and Gender Education (SAGE) told GLW: “For 10 years we have campaigned for this change at SAGE. We have brought case after case and slowly moved the passport office into the situation where we now have the most humane passport rules in the world, where people can choose male, female or X. It is a mega triumph.

“So many people and campaigners stood up for their rights. Now we have to focus on getting the other recommendations mentioned in the Australian Human Rights Commission’s Sex Files Report implemented, including birth certificates amendments and anti-discrimination laws.”

On birth certificates, there is no “indeterminate” option. Surgery is still a prerequisite for changing the gender on your birth certificate.

“Everyone is different,” said O’Keefe. “People from all the different sex and/or gender diverse groups are different, therefore don’t have the same needs. What other identity or medical conditions in society require the person to have surgery? Seems all very silly now looking back, doesn’t it.

“Just let’s think about it for a moment — government officials pretending they understand biology and sociology. The power of the rubber stamp is so dangerous in the wrong hands when its owner refuses to listen to people’s needs.”

Until the law is also changed around birth certificates, mismatches between passports and birth certificates will remain a problem for many. This causes many difficulties, including the denial of the right to marry. Australian law defines marriage as between a man and a woman. If a person has “male” on one document and “female” on the other, any marriage could be construed as not between a man and a woman, and dissolved under Australian law.

“When a person’s documents do not match, for any reason, alarm bells go off when they present themselves in situations where they have to prove their identity,” said O’Keefe. “We should not persecute or hold people to ransom just because they have a different sex and/or gender to ourselves. It is apartheid. It is segregation of the heteronormative in society and those who are sex and/or gender different.”

In recent years, the sex and gender diverse community has become more politically organised. On May 11, Australia’s first national convergence for sex and gender diverse human rights was held in Canberra, organised by Still Fierce. The passport victory also follows a short-lived victory in last year, when the NSW state government briefly recognised activist norrie mAy welby as a “sex not specified” person, before reversing the decision.

The first Australasian sex and gender diverse conference will be held on December 2 at the Redfern Community Centre in Sydney.

Transgender activist Conor Montgomery on Channel 7's Sunrise program on September 26 speaking about the passport victory


this article misrepresents the real position and invisibilises the working group that was responsible for these changes. THE first person to be granted an X on their passport here in Australia under the new Department of Foreign Affairs & Trade (DFAT) sex field designation policy announcement is a trans person named Norrie May Welby. The second was an intersex person from Organisation Intersex International Australia Limited (OII Australia). The new rules OII Australia was the adviser on intersex to the Ministerial Panel for this policy. We are also the intersex representative on the new Parliamentary Friends of LGBTI Australians (PFLGBTIA) group. The qualification to receive an X sex designation on your passport if you wish it is a letter from your doctor stating that you live as a person of indeterminate, unknown or non-specified gender*. Anyone can apply so long as they have a willing doctor. The X is available because of an insistence from OII Australia, and especially by our president Gina Wilson, that an X must continue to be available for intersex people if we want it. Gina also argued for that designator to be generally available. The Minister for Foreign Affairs made it available but used intersex-explicit language as a gesture of his acceptance of our arguments and as an indication of his support for intersex human rights. The DFAT web page and press releases reflect the Minister’s commitment to intersex and in doing this has made this policy only the third in the world to be completely intersex-inclusive. The history of the X sex marker The only allowable designators under ICAO rules are M, F or X where X signifies “sex unknown”. X has been available since 1945 when the United Nations (UN) vested control of passports in the International Civil Aviation Organisation (ICAO). The X arose out of the huge refugee migration following World War II. Several international organizations such as the Red Cross were responsible for resettling the migrant slave workers and concentration camp survivors following that conflict. Emergency passports were generated in large numbers to allow the quick resettlement of individuals without any identifying documentation and from places where that documentation had been destroyed during the war. When making up the passports the agencies could not, from the names alone, decipher the sex of the individuals due to foreign names often being too complicated for the ears of French, English and American aid workers. Once again we wish to point out the fact that sex and not gender is the marker on passports and the ICAO rules make that fact very clear. X was made an allowable designator in view of the difficulties resettlement aid workers had with unfamiliar names and the sex usually associated with them. We are legally able to take advantage of this facility despite the originators not having quite the same objectives in mind as we do. The rules do not require that the X must eventually be resolved into an F or M designation, though that was likely the intention when the policy was drafted. To prevent us from having X designators there would need to be a debate on the floor of the UN to whom the ICAO must defer when revising their passport directives. The previous Australian policy Australia has allowed X on passports since about 2003 when a Victorian-born Western Australian-resident intersex person, Alexan MacFarlane, fought for that designator through the Administrative Appeals Tribunal. Five or six Australians were granted the right to an X designator under a subsequent policy, still viewable on the DFAT website. In the past it was necessary to have “not specified” on one’s birth certificate to qualify for an X designation. The state of Victoria maintained the only birth registry that was willing to have that appellation on a birth certificate and would only do so for people known to be intersex and where that was evident from the original notification of birth paperwork – the birth certificate. Consequently X was rarely put on passports. Easing the burden of proof The current policy eases the burden of proof so that a letter from a medical practitioner is all that is required to qualify, making it much easier for intersex people and anyone else to opt for it. OII Australia continues to lobby for the X designator to be freely available to everyone as a matter of choice and without other qualifying documents. Footnote: * Yes, we know that intersex is about sex and not gender, but we cannot control everyone’s use of language and understanding of the fundamental difference between sex and gender nor of how they are somewhat related. We do our best nonetheless. We win some and we lose some but we do keep on trying to educate and encourage basic research.