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Back You are here: Home Sex, Gender & Sexuality Diversity SGD Sex, Gender & Sexuality Diversity archived ISGD Australian passport change for sex and/or gender transitioning people

Australian passport change for sex and/or gender transitioning people

PassportA 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. She shares the story of her legal battle with the Australian Passport Office.

11 June 2011

My name is Marcelle. Just last week after seven long months I received my updated Australian passport indicating my true gender identity on my passport as female and valid for the full 10 years. I am a transsexual woman who transitioned full time in late September 2010 but have not had sex realignment surgery.

I managed to achieve this bureaucratic change as an individual, but I didn't achieve it alone. What's important and why I succeeded was that I had assistance from a variety of areas, some direct some indirect and more importantly I was able to successfully expand on prior cases, fought and won by a large number of others in the transsexual community. I was able to capitalise on their hard work and without that I would not have succeeded.

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.

I also decided to be as open and honest in all my dealing, and I never tried to be tricky or deceitful. I have been hiding my whole life – I didn’t want to go down that path in any way. So I made sure I didn't compromise on any of my principles in my dealings with them.

I have a background in ISO 9001 procedures and have taken one company through certification so I know and understand guidelines. 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.

My therapist, Dr Tracie O’Keefe, DCH agreed to follow-up with them and contacted the case worker. 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.

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. I went public with the local newspaper, the Canberra Times, and succeeded in having a full-page article written on my case. My appeal was rejected on the same grounds as before.

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.

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 concerns up front because the form requested gender on it, and my whole case was based around this and my identity. On contacting them, they said this part of the form was optional.

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.

I again used prior cases of similar discrimination, like the Peter Hyndal case, as the grounds for the appeal, and then went into reading on previous case law in Australia to get a feel for what I would have to face. When they requested the hearing to be pushed back on the date, I said no. I was ready to put forward my case. I also made it known I wanted the case to be public.

I might have been hiding who I was my whole life, but I wasn't going to do that now.

In all my dealings with the Passport Office, I used my original name and no title. With the AAT I used my female name and female title. Ironically and actually quite importantly the Passport Office in the appeal actually referred to me as Ms and used my female name even though I had never used it with them. I deliberately kept a neutral path.

I have not changed my name, but as a simple extension (adding an ‘le’ to the end) as an alias to help people cope with the transition. They had unknowingly identified me as female, and done it via legal paperwork. They also had no grounds to say this was what I wanted to be referred to as, as I had never in writing expressed that.

As this whole case centred in part around establishing my identity as female (and them quoting the law saying they needed access to the sex on my birth certificate to establish my identity), it was quite absurd that in the rejection email I was referred to in the feminine but was told I had to be male on my passport.

Interestingly and to which I repeatedly pointed out to them, the law stated that they may use the gender on the passport to establish identity, it did not say that they had to.

When I received my official legal papers from the AAT, they also referred to me as female and this time, an official legal document established my identity as female. Again, without anyone realising it, I was being identified and treated as female.

I sent through documentation to the tribunal covering these points:

1. Trying to associate fraud with anyone gender transitioning was tantamount to an insidious form of discrimination.

2. The issue was about my safety when travelling above all else, and I was not going to be used as an experiment to prove the point that I could be incarcerated when travelling because I did not match my passport.

3. Forcing me to use a DOI, when I was entitled to a passport, was discrimination on two grounds. The first being that an employee of the crown was knowingly putting me in a position of embarrassment or harm if I had to keep my passport as male.

The second was that they were denying me a goods and service under the law because of my sex and gender identity. Whether these arguments had merit I never found out. I also raised the issue that the government was either dictating that I use an inferior DOI when I travel, or that I travel as a male.

In effect they were dictating what my sex and gender identity should be. A very dangerous path to go down.

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. When I showed them my current passport photo taken 18 months ago it was obvious I looked completely different to it.

When I raised the embarrassing issues encountered entering and leaving the country, and that in the United States my driver’s licence was accepted by officials as a form of identity and not my passport, just showed how useless my passport was for establishing my identity.

Considering the prime purpose of the passport is to establish one’s identity, this issue just proved my point. What surprised me was that they did not push the use of the DOI argument, which until then was their strongest argument. Maybe the points I raised with them had merit. Without it, I knew they had no case, as without it, the case now focused around my safety when I travelled, and there were well documented prior cases involving the Passport Office whereby it had to officially acknowledge that not matching your passport gender is a safety concern as in the Stefanie Imbruglia 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.

After the hearing I went on the offensive, raising arguments against possible further technicalities they might try to sneak a win on. When the rules of the hearing were sent to me, and one of them included the establishment of whether I qualify under humanitarian guidelines, I responded with my most emotive and strongly worded letter.

I pointed out none were qualified to make this decision: the Passport Office had no basic understanding of what the humanitarian guidelines really are because they eventually admitted there was “no policy document, guidelines or any other information in existence that expands on the meaning of the expression ‘rare and unique circumstances of a compelling humanitarian nature’”.

Eventually after the preliminary hearing Passport Office conceded the case and it was settled with them issuing me with my 10-year female passport.

The decision handed by the AAT on 27 May 2011 states:

“The Respondent’s decision of 25 January 2011 to refuse to issue an Australian passport to the Applicant with the sex shown as female is set aside; and the Applicant’s application for a passport dated 17 November 2010 is to be remitted to the Respondent with the direction that an Australian passport be issued to the Applicant, noting her sex as female.”

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.

Special thanks goes to Dr Tracie O'Keefe DCH and the campaigning group Sex And Gender Education (SAGE). As my sex and gender therapist Tracie has provided me with the direction, advice and assistance I needed to make it this far.

I would also like to thank my local Federal Representative, Gai Brodtmann, who I just found out today had actually made efforts behind the scenes privately in a number of key areas to help my case.

Addendum written by Tracie O’Keefe:

This is yet another pivotal case in the history of the Australian Passports Office’s changing policy on passports for transitioning transexed, transsexual and transgendered people. In the past the Australian Passport Office has cited transitioning women who have not had genital surgery as potential terrorist risks.

Marcelle’s case establishes that from day one of official transition a person should be entitled to a full 10-year passport in the gender they present themselves to be regardless of genitalia status or sex stated on the birth certificate. Accompanying letters from professionals must be included.

Genital surgery or a promise of surgery should not be the decider or qualifier of real entitlement to a gender-appropriate passport, although hormone treatment may need to be present. Under international law a passport must match the presenting identity and provide a safe document of travel. The Passport Office says it has discretion on humanitarian grounds. However, to change a passport the applicant must state that being transexexed, transsexual or transgendered in the first place is a qualifier for consideration on humanitarian grounds.

SAGE will now press for better humanitarian guidelines and policies to be put in place at the Passport Office. People may find it difficult to begin with until those guidelines are put in place but this case proves that lack of surgery should never be an obstacle to having the gender on your passport changed when you are transitioning. SAGE is willing to help in difficult cases.

Marcelle is a transsexual woman who lives in Canberra. She has requested that her surname not be revealed in this article.

Editor-in-chief’s note: The Scavenger has seen and verified documents quoted in this article that pertain to this case.

Comments   

0 #7 sidney 2011-07-20 17:54
im going to find it very difficult when the need to travel say for marriage because im a pre-op transsexual woman, and don't know much about the law. but i have my name female and title as ms, so i hope that it makes it easier to change sex on passport when i apply to get one. well done to all and im glad the passport was issued in the correct gender.
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0 #6 Nikki Summers 2011-07-01 21:55
Oh Marcelle, that is suchgood news and a story of persistence and dedication. It also shows how sadly underinformed are the government sections that attempt to regulate our lives. Although I must say I have found a sprinkling of very helpful people only to come up against the brick walls of policy and procedure.

But like you I have found that so far as the people are concerned if you are patient, calm and treat them with respect that they will very often reciprocate that to you. I, for instance, have always feared dealing with centrelink but needed to to make vital changes regarding me and the person I dealt with gave me an entirely different impression up until the gender marker, everything else he did and even has pre-approved a further three mths unemployed immediately following surgery on a full allowance.

I have only just started collecting all my details for passport as it is my last document change and planned to let it all go according to their issuance of DOI but will consider your strategy if I need to get it earlier.

Thanks again for posting your story Marcelle, it is indeed a marvelous tale of belief and persistance.

hugs, Nikki
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0 #5 Michelle Sullivan 2011-06-21 03:57
Well done all, guess it's time for me to see if I can correct my 'anomaly' .. I am a UK born Australian Citizen living in Malta...

I have 2 passports, a UK passport and an Aussie passport... The UK one shows 'F' the Aussie one 'M' ... my Maltese ID card shows Mara (Female) and my UK Driving license whilst it does not have sex marked on it has a drivers license number that indicates female...

My Birth certificate says 'boy' but I haven't attempted to have that changed, apparently it's procedural in my case and as such changing my Aussie passport would be simple if I follow the long winded procedure... My desire is to have the 2 passports matched without any long winded procedures. I suspect having a UK passport at 'F' and aussie as 'M' is enough grounds based on the 'can make travel unsafe' grounds alone.... Especially as I have to travel for business and whilst I travel mostly on my UK passport, if my destination is Australia I can only depart on my Australian passport - and if I have entered on my UK passport... well you can see the issues this raises immediately.

Anyhow well done Marcelle, congrats.

Michelle
xx
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0 #4 nixwilliams 2011-06-12 19:08
Congratulations , Marcelle, and thanks for following this through with such skill patience. This is potentially a huge step forward.
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0 #3 Indi 2011-06-11 18:34
another win, leaps and bounds my friends.
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0 #2 Sophie 2011-06-11 05:46
My husband is a trans woman. We have just started changing documents. We were both born in the UK, but live in Spain. We got letters from the Psychiatrist and Psychologist stating the new gender, no surgery is going to be carried out. The next thing was to change name by deed poll, My husband spoke on the phone to a solicitor in the UK about this. We were told that we didn't need to be there, but did need someone to clarify that the details were correct. The solicitor sent something that had to be signed, and we received 6 copy's stating the change of name.
To change the passport name and gender, we needed the letter from Psychiatrist and Psychologist, a copy of the deed poll, and 2 letters showing that the new name was being used, it was really that easy. They is stillsome moree documents to be changed in the UK and Spain.
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0 #1 Zoe Brain 2011-06-10 22:43
Well done to all concerned.

This removes an anomaly: for those Australian Citizens born overseas do not have to prove genital surgery in order to be recognised as their target gender on their Immigration documents. These are the cardinal documents used by the Australian Passport Office to determine the sex of passport applicants.

What this meant, until this case, was that Australians born overseas did not have to provide proof of surgery to qualify for a change of sex on their passport, but those born in Australia did. There are examples where just this has happened.

In my own case, I have a UK Birth Certificate saying "Boy", but an Australian passport saying "F" - and I've not provided the Commonwealth any data about surgery, what I had for breakfast on 11th August 2002, what my favourite colour is, or anything else none of their concern. It took me 20 months to get my passport, legal letters etc etc but they caved before an AAT hearing was needed.

This case now makes the two situations, Australians born overseas and those born in Australia, equal. My congratulations to Marcelle on winning this fight, and taking it to the mat. She, with her specialised knowledge of ISO-9000 and other areas, and refusal to feel humiliated no matter how she was treated, has cleared the way for others with less resources.
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