Tell ‘em they’re dreaming!
The report by Katrina Fox, “Australia’ first legally married lesbians” (SX- 6 October 2007) does no-one a great favour.
Katrina unduly raises the hopes of those who are gay or lesbian and who earnestly seek the right to marry their loved ones, but are still denied that by the proscription against same-sex marriage that has always been enshrined in the Marriage Act. Howard’s recent amendment did nothing to alter the law in that regard, but it certainly reinforced the inherent discrimination.
And she adds to the confusion over the legal status as to sex of men and women who have completed the treatment for transsexualism, including sex affirmation surgery.
It has been quite clear since the Family Court settled the question in 2001, in the case of Re Kevin, that the sex of a person for the purpose of marriage is their sex at the time the marriage was entered into. Grace was legally a male when she married her partner even though she is now a female for all other purposes except her birth certificate. It is this issue of her birth certificate which is most deserving of further discussion.
All the states have similar provisions in their Births, Deaths and Marriages Registration Acts allowing persons who have completed sex affirmation to obtain a birth certificate that reflects their contemporaneous circumstances. That is, except those who are under 18 years or are “not unmarried”.
A woman of transsexual background known only as “AB” was recently unsuccessful on a technicality in her application to the Federal Court to have the “unmarried” requirement declared invalid. Yet the Full Court found her to be a woman for all other purposes including for an action in sex discrimination under the Commonwealth Act.
The AAT pointed to the ludicrousness of having documents of identification that do not reflect the reality and made the Commonwealth Minister issue a corrected passport. It’s time state Attorneys-Generals did the same with birth certificates.
St Andrews, VICTORIA
Australia’s first legally married lesbians
Wednesday, 03 October 2007
Tribunal passport ruling creates a same-sex marriage
Two lesbians became the first legal same-sex married couple in Australia this week when the Administrative Appeals Tribunal (AAT) handed down a judgement in relation to a trans woman’s right to a female passport...
Grace Abrams has a male birth certificate. Between 2001 and October 2005, she began her transition to female, marrying her partner Fiona Power in September 2005 prior to the completion of her transition. In April 2006 Abrams applied for an Australian passport denoting her as female.
The Foreign Affairs Minister Alexander Downer refused to issue Abrams with a female passport because she had been unable to supply an amended birth certificate stating her gender as female. She was unable to do this on account of being married (the Manual of Australian Passport Issue states that married trans people wishing to change their birth certificate must first divorce their partner). Downer admitted that his decision not to grant Abrams a female passport was informed by the Marriage Act 1961 (Cth) which does not recognise marriage between two people of the same gender.
Abrams lodged a complaint with the AAT, arguing that a birth certificate was required only to establish that a person is an Australian citizen and therefore eligible for a passport, and that she could prove her female identity through a raft of other documents.
In the judgement handed down this week, Justice Rodney Purvis agreed. The policy guidance contained in the Manual, in this respect, is not able to be complied with by Ms Abrams through no fault of her own. He went on to state: There are markers of identity which can change over one’s life. It is not so much the identity of the person as she or he was in the past, but the identity of the person as at the time of the application, that is of prime importance.
Justice Purvis said he was satisfied as to the citizenship and identity of Abrams and directed the Foreign Affairs Minister to issue her with a female passport, effectively making her and Power the first legally-recognised same-sex couple in the country.
Abrams urged other married trans people to apply for a passport in their current gender before the government appealed the decision.
Forcing someone to divorce their spouse so they can get a passport denoting their rightful sex is illegal because the couple would have to commit perjury and lie, saying that the relationship had broken down irretrievably, she told SX.
Meanwhile, Downer responded to a Question on Notice from Greens Senator Kerry Nettle regarding the safety of transpeople who wish to travel overseas. As reported by SX (#341), an amendment was made to passport legislation earlier this year denying pre-operative trans people an interim passport stating their intended sex. Those wishing to travel would have to do so either on a passport denoting their birth sex or a Document of Identity (DOI). Lobby groups condemned the decision, arguing that it would put trans people’s safety at risk.
Downer denied that travelling on either document increased trans people’s risk of harassment; however his response is in contradiction to a letter handed to trans people by his department when applying for a passport, which acknowledges that some countries do not regard a Document of Identity as a valid travel document and that a DOI may lead to customs officers in some countries to harass the bearer at entry points.
Trans woman Stefanie Imbruglia, who was denied an interim female passport recently in order to travel to Thailand for gender realignment surgery, told SX “The original law outlining interim passports was put in place after a trans woman was arrested in Singapore for having a male passport. Today, due to the change in legislation, that is a possibility I face.
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