Reform Proposal - your comments wanted

[GInnes]

REFORM PROPOSAL - YOUR COMMENTS WANTED

Thank you to everyone who has contributed to our Sex Files blog, our May Issues Paper and met with us at our public meetings.

Over the last few months, we have also held discussions with relevant government departments to further understand how sex and gender is legally recognised in Australia.

As a result of our public consultations and meetings, we have drafted a proposal for reforming the current system of the legal recognition of sex.
In our proposed reform on the legal recognition of sex, we have attempted to make the system more inclusive for:

• married persons
• persons who have not undergone genital surgery or other sex affirmation surgery
• persons who have undergone genital or other sex affirmation surgery overseas
• children and young people under 18, and
• persons who wish to be identified as intersex.

Please see the attached document for more details. [Also online at http://www.humanrights.gov.au/genderdiversity/reform_proposal_recognition2008.doc ]

I look forward to hearing your comments on the proposed reform.

Graeme Innes

[rachel Atkinson]

The proposal is a bit unclear, Iam a transgender female who is 68 years old and would love to have reasignment surgery however the risks are great and Ibelieve that to change my birth certificate to female should not subject me to risking my life.Iencourage you to do every thing possible to have the law allow us to have the correct documentation to show our true gender . Keep up the good work regards Rachel

[noeleena]

hi... we here in new zealand have our h r c ..& we have spent some time with then so was wondering if you have had any contact with them our info on what we have if you like . laid out concerning our selfs . has been good its called..... to be who i am j. ust thought you may like to know how we are getting on here . ... noeleena... noeleena@clear.net.nz

[Zoe Brain]

Excellent recommendations, striking a balance between ideals and what can be practically achieved in the medium term.

I Am Not A Lawyer, and I hope Ms Wallbeck and other legal professional may comment, but...

Trying to get the states and territories to co-ordinate on such a controversial issue will be like herding cats. Various large and influential religious groups will have severe bovinosity - they'll have large and influential religious cows. Also conniptions. That would happen anyway, but some state governments would feel the pressure more than others.

It is not clear that the Federal Government has the constitutional power to make such rules though. Now it is just barely possible they may have, via the Universal Declaration of Human Rights via the Yogyakarta principles.(Section 51.xix) or alternatively, with the agreement of the states (ignoring territories) 51.xxxviii.

See http://www.aph.gov.au/SEnate/general/co ... r5cha1.htm

Note that in Australia, the declaration is *not* self-executing. Australia had the following reservation at signature to the International Covenant on Civil and Political Rights:
"Declaration:

"Australia has a federal constitutional system in which legislative, executive and judicial powers are shared or distributed between the Commonwealth and the constituent States. The implementation of the treaty throughout Australia will be effected by the Commonwealth, State and Territory authorities having regard to their respective constitutional powers and arrangements concerning their exercise." "

So by the reservation, it's arguable that the Commonwealth has already delegated its power over compliance to the states, and they will implement the legislation in their own sweet time at some unspecified future date.

But again, IANAL.

Zoe

[battybattybats]

Interesting and a substantial improvement over the current situation, however it raises some very big fundamental Human Rights questions for me.

"Information about sex or gender is an important component of a person’s identity. "

While this is most certainly true for many many people I would like to know why it needs to be on documentation. What actual practical purpose it serves on that documentation.

Also why the needs and issues of Genderqueer people and others who do not wish to conform to strictly male or female are not directly raised. Under your proposed changes they could potntially seek to be catagorised as Intersex, an identity term that has not previously been used to cover them. For example I as I am a crossdresser with quite genderqueer male expression if I sought to have my identification changed to prevent discrimination coming from having male documentation but frequently a rather androgynous appearance (and as I'm slowly coming out increasingly a female one) could be classed as Intersex?

"‘sex affirmation treatment’ under the proposed reforms would mean a surgical procedure or medical treatment to alter the sexual characteristics of a person. Alteration of genitals or reproductive organs would not be required to satisfy this definition."

While this is clearly an improvement in the requirements for those who wish to change their documentation it nontheless would still rule out 24/7 full-time people who live as the sex they identify as but are unable or choose not to undergo any medical treatment. As there have been at least one case of a person who lives full time as a women who has been discriminated against because of their sex/gender diversity (the recent casino case here in NSW) is this not still discriminatory unfair and contrary to the Human Rights of these people? The requirement of any medical and/or surgical treatment for legal recognition is contrary to the Yogyakarta Principles. From pages 11 and 12 of the Yogyakarta Principles: "No one shall be forced to undergo medical procedures, including sex reassignment surgery, sterilisation or hormonal therapy, as a requirement for legal recognition of their gender identity. No status, such as marriage or parenthood, may be invoked as such to prevent the legal recognition of a person’s gender identity."

Also is not the board proposal to administer and regulate changes of documentation somewhat discriminatory as it involves an additional process of beaurocracy for sex and gender diverse people that sex and gender typical people do not have to go through? What measures to gurantee fair due process would exist or to prevent the definitions and criteria being interpreted in excessively narrow terms?

As there are many with controvertial views on sex and gender diversity in the medical and psychological professions which are contrary to the Human Rights of Freedom of Self Identification and Freedom of Expression does not such a validation process in actuality merely serve to restrict documentation change, to increase the risk of discrimination based on potential bias amongst the beaurocracy of such an adminstrative service and amidst the medical and psychological communities?

[battybattybats]

And with children, while the proposed system is an improvement it assumes a distinct clear internal identity. Thats all well and good because for many there is a clear identity. But while Intersex children could be classed as such what about those other sex and gender diverse children who do not strongly identify as male or female, would they then be classed as Intersex until they make up their mind? If not then what if they change their mind over time? If they do not have a clear male or female Identity, how can they be considered to have made a truely informed decision to make a permanant change on their legal identities without experiencing all possibilities?

And if the Intersex catagory does not cover the rest of sex and gender diverse people who do not ascribe to a binary gender identity so long if they do not have a birth sex diversity such as is currently considered to fit under the term Intersex is that not a clear discrimination?

While a distinct improvement for many sex and gender diverse groups these changes seem to still overlook and fail to meet the needs of and acknowledge the Human Rights of a significant number of sex and gender diverse people by needlessly maintaining strict and quite limited catagories of officially recognised sex.

This seems to be distinctly contrary to the Human Rights of those who feel between sexes unless they are catagorised as Intersex, to be contrary to the Human Rights of Cultural Rights of Indiginous peoples of our region who have Third Sex cultural traditions unless they are catagorised as Intersex.

And so Intersex becomes a catch-all catagory for Transexuals unable to undergo surgery and hormone treatment because of conflicting health consitions, crossdressers who do not identify as Male but do not wish to undergo medical procedures to be catagorised as Female or who identify as both Male and Female, Genderqueer people who do not identify as either Male or Female or identify as both as well as Indiginous peoples from this region with Third Sex identities and immigrants from other cultures with Third Sex traditions.

With the legal changes required to support and provide fair access to services for the Intersex catagory what purpose is served by maintaining gender markers on these documents at all?

Doesn't this proposal, by merely shifting some catagories in a fundamentally discriminatory system with no as yet described valid practical function but to produce and enforce such discrimination merely entrench and extend the abuse of the Human Rights of those Sex and Gender diverse peoples who do not neatly fit into it's catagorisation? Is it not still contrary to the existing Human Rights principles of Freedom of Self Identification and Freedom of Expression and Protection from Undue and Excessive Beaurocracratic Burden and requirments for recognition of fundamental human rights that all other citizens enjoy without restriction or requirement?

These proposals are not consistent with Australias obligations according to the Yogyakarta Principles. Why is that the case?

[Gina]

This is a vile document that seeks to portray Intersex individuals as people who are neither male or female. It has us as gender benders stuck in the middle.

I am revolted that a comissioner who claims to stand for human rights would further villify an already marginalised and misunderstood group.

I would like to know what Intersex people he consulted to come up with this rubbish.

If this becomes law I will no longer be able to Identify as Intersex , the whole thrust of what we have lobbied for will be perverted. Intersex children will become neither's when we are nearly all either male or female.

I am devestated by this travesty.

Gina Wilson

[Gina]

Intersex is a word with a long history and identifies people who have physical hormonal and genitic differences most intersex people 99.9% identify as male or female . Intersex does not mean we are halfway between . This is a repetition of the old hermaphrodite bigotry from the mid 20th centuary

Australian passports currently allow for an X in cases where people do not want to identify as either male or female.

Comissioner go and find your own word for those who want to be in the middle and leave our identity alone. Why not reuse hermaphrodite.... its in the bin where we left it.

Intersex is not neither male or female.

Gina Wilson

[Peta Bourne]

Comments on Proposed Reform

The proposed reform will result in better, more inclusive laws than we currently have.

I welcome the removal of the "must not be married" criterion. I suspect this criterion exists in state and territory laws to lessen the chance of a high court challenge under s109 of the constitution (being inconsistent with the Marriage Act). I feel that Commonwealth legislation is therefore required to prevent s109 challenges. For what it's worth (and legally it's probably not worth much) I refer you to an answer to a Question on Notice provided by Senator Coonan concerning the validity of marriage where one partner undergoes SRS subsequent to a lawful marriage. (Senate Hansard 9 Feb 2005 p82 (pdf p98))
http://www.aph.gov.au/hansard/senate/da ... 090205.pdf

I welcome that surgery is no longer necessary, replaced by undergoing "sex affirmation treatment' and a genuine intention to be permanently recognised as a different sex.

I welcome the simplification of the process - a statutory declaration from one medical practitioner rather than two (NSW)

I welcome the emphasis on process rather than terminology.

I welcome the recognition that sex is not a binary state by the inclusion of intersex. I note that with this recognition, laws that refer to "opposite sex" or "the other sex" may need amending. I further note that the Marriage Act discriminates against persons who are neither a man nor a woman.

I thank you for the opportunity to comment.

My Background: Aware of difference before age 5; hormone treatment commenced Feb 1997 (at age 45); transition/change of name October 1998; srs Feb 2002. Father of 3, grandmother to 4. Srs was very fulfilling but not an urgent necessity. My life changed when I was honest with myself, my loved ones and, after transition, society. Eligible to change sex on my NSW birth certificate for over six years but have not felt the need to do so thus far.

[earthangel]

[quote="Gina"]Intersex is a word with a long history and identifies people who have physical hormonal and genitic differences most intersex people 99.9% identify as male or female . Intersex does not mean we are halfway between . This is a repetition of the old hermaphrodite bigotry from the mid 20th century... Comissioner go and find your own word for those who want to be in the middle and leave our identity alone. Why not reuse hermaphrodite.... its in the bin where we left it. ... Intersex is not neither male or female.[/quote]

You are right, Gina. Does AHRC still not get it about intersex? Do we need to draw pictures? Or perhaps not... that might take us back into the kind of thing that happened in the Victorian era, where photographs of intersex people were labelled "imbecile" thus justifying the authorities to do with us whatever they felt like.

Perhaps AHRD is reaching for a word not unlike "intergender", but taking that word away from those of us who currently use it might well offend even more of us. What do you think?