Launch of Sex Files: the legal recognition of sex on documents and government records
Senator Louise Pratt, Labor Senator for Western Australia.
Tuesday 17 March 2009
Parliament House, Canberra
I acknowledge the Ngunnawal people, who are the traditional custodians of the land, and their elders, past and present.
It is a great pleasure for me to be here today, launching the Australian Human Rights Commission’s sex files report.
The issues addressed in this report are not new.
There has been a compelling need for the reform of laws and policies that affect sex and gender diverse people for a great many years – a need which has, until now, been largely ignored.
In that context, I would like to commend the Human Rights Commission for taking the lead, and undertaking this important inquiry.
I would especially like to thank the HRC and, in particular, Human Rights Commissioner, Graham Innes, for consulting extensively with people of sex and gender diverse backgrounds, their families, and also with all levels government.
In turn, I would also like to acknowledge the many people that have participated in the HRC's consultations.
Some have done so privately on-line at home – others have come out to public meetings.
To all of you, I say thank you for sharing your personal experiences – it isn’t an easy thing to do.
Your willingness to share your experiences was vital to the production of this report, which highlights, in a clear and comprehensible way, what it's like to walk in your shoes.
Most people take for granted the legal recognition of their gender identity – and can’t fathom what it might be like to be without such a basic right.
However, this report demonstrates that being denied that right creates significant difficulties for people who are sex and gender diverse.
Many sex and gender diverse individuals face a daily struggle to demonstrate their identity, with documents showing them to be of one gender when, plain as day, they present as another.
Having to constantly explain this inconsistency, often in the face of disbelief from government and other organisations, can cause frustration and embarrassment.
It can also have significant ramifications in every aspect of one's life - from basic, everyday things, such as opening a bank account or getting a driver’s licence, through to critical questions such as accessing medical records.
One problem faced by many relates to passports.
Some sex and gender diverse people have been unable to travel – as it is simply not safe or practical to travel on a passport that identifies you as one gender, when you identify and present as another.
I am very pleased to be able to indicate today that the Department of Foreign affairs is taking active steps to address this issue.
I understand the impact these kinds of issues have on individuals and their families, having watched my beloved partner confront them, during the course of his own transition.
In addition, as a Senator, many sex and gender diverse people and their loved ones have raised these issues with me, as they confront the effects of current laws and policy on their own lives.
In particular, I have received a significant number of representations from married couples, many with children –who can only obtain legal recognition of the trans partner’s sex, if they obtain a divorce that they do not want.
This is because all states in Australia require a married trans person to get divorced before they can apply for gender recognition – no matter how committed or loving their marriage.
I find the idea that a couple must get divorced in order for one partner to access basic rights incredible.
This places these couples, who surely already face enough challenges, in an impossible position.
Such requirements can have a terrible affect on the whole family.
For example – a couple must demonstrate that they have been separated for at least 12 months, before a divorce will be granted.
Whatever your views on same sex marriage – it is not necessary for State laws to insist on divorce before gender is recognised.
Successive Federal Attorneys-General have confirmed that there is nothing in our Federal marriage laws to impedes the ongoing recognition of such a marriage – it is legal provided that the couple was an opposite-sex couple when the marriage began.
Current State laws also set many other arbitrary criteria – in particular, by requiring specific surgical and medical interventions that for some individuals may not be wanted or needed.
In some cases, the medical or surgical interventions required may not even be medically or financially feasible.
A person may have been living in their true gender for many years, with most in the community unaware of their previous gender history, and yet still not be able to meet all of these arbitrary criteria for gender recognition.
The situation is further complicated at the Federal level.
The determination of gender is a State responsibility.
Consequently, Federal agencies, such as Centrelink or Medicare, must rely on State-based cardinal documents to determine a person’s gender.
Some Federal agencies have developed policies that are more flexible, based on their own assessments of gender identity – and they should be congratulated for this.
However, the absence of a coherent national policy has led to much confusion.
In fact, many people are being issued identity documents that contradict each other on the question of gender – so that people appear, through no fault of their own, to have multiple identities.
The current problems confronting sex and gender diverse people may seem complex – but the solution is simple.
The Sex Files report is the culmination of a months-long inquiry conducted by the Commission.
During the course of the inquiry, the Commission found a great deal of variety amongst sex and gender diverse people.
However, all of those people had a single, simple demand – to be recognised for who they were, without having to negotiate a set of pre determined criteria in order to fit within narrowly constructed boxes.
The HRC has listened to this message, explored the current legal and policy constraints, and developed a straight forward and coherent set of recommendations that can resolve problems of the kind that I have described.
The report presents a framework for a fairer and less complicated identification system that recognises the many sex and gender diverse people in our society – and their need for, and right to, recognition of their gender.
I have no doubt that, as with previous work undertaken by the Commission, this report will serve as a catalyst to progress reform at all levels of Government.
The universal declaration of human rights says, "all human beings are born free and equal in dignity and rights."
However, a person cannot have dignity, freedom or equality unless all those things that are fundamental to their identity are recognised – and this includes their gender, as they affirm it.
For too long, Australia's laws at a State and Federal level have put false assumptions about the fixed nature of sex and gender above the dignity and humanity of the sex and gender diverse individuals in our community.
If we can redress this inequity, we will improve the lives of sex and gender diverse people – while also making Australia a more inclusive nation.
