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Kathy's Komments

This page will have regular comments from Kathy.

 

"Conformity is the jailer of freedom and the enemy of growth."
( John F. Kennedy - Address to the UN General Assembly-(25 September 1961.) -http://en.wikiquote.org/wiki/John_F._Kennedy

 

Passport Letter

2007-05-05


Re: Passport Letter

2007-05-05 – 12:19 pm

If I am reading this correctly, it appears that it makes no difference to a TS person whether born in OZ or abroad. We are not recognised at law. We are only issued with an amended passport to “Save us embarrassment” This is not good enough in any way, as that means we are still recognised in our Other gender/sex after SRS!

I don’t think that holding a GRC for those born abroad is really of any value under these circumstances, and the same for an amended BC granted to Australian born TSs. It appears that we are all discriminated against here, because the Federal Government does not fully recognise us at law!

Kathy


Sunday, May 06, 2007 10:22 AM

From: Karen Gurney

Sent: Sunday, May 06, 2007 10:22 AM

To: Kathy Noble

Subject: Re: Re Passport letter

Dear Kathy

You wrote:

If I am reading this correctly, it appears that it makes no difference to a TS person whether born in OZ or abroad. We are not recognised at law. We are only issued with an amended passport to “Save us embarrassment” This is not good enough in any way, as that means we are still recognised in our Other gender/sex after SRS!

 

With respect, it appears to me that you are not reading it correctly at all since, after surgery, we are recognised in our affirmed sex. What makes a difference is SAS. I have said this over and over... and the following excerpt from Re Kevin says it all over again (note the lack of any reference to birth certificates, recognition certificates or like instruments):

316. If one considers those courts and legal institutions that have correctly identified that task, there is a remarkable consensus, namely that the law should treat post-operative transsexuals as members of their re-assigned sex. This conclusion has been reached by the vast majority of expert and distinguished commentators. It has been the basis of many social arrangements. It has been systematically embraced and acted upon by the medical profession.

 317. Most importantly, this conclusion has been reached by numerous courts from as early as 1945. At least in general, those decisions that do not reach this conclusion tend to fall into one of three categories: (i) cases based on the essentialist approach; (ii) cases holding that the decision in Corbett settled the law and any change is now for the legislature; and (iii) the European human rights cases holding that respect for States' "margin of appreciation" prevented non-recognition from violating human rights standards.

 318. The reasons for the law to recognise sex-reassignment of post-operative transsexuals have been expressed in different ways. Some of these have been quoted in this judgment. Although some matters relate to specific legal contexts only, these decisions generally embody a number of common themes. No brief summary can do justice to the force and eloquence of many of the statements, but I would indicate the main themes in the following way.

 319. Firstly, acknowledging the sex-reassignment respects the rights of the individual concerned. Sometimes, this is expressed in terms of human rights. Sometimes, it is expressed in terms of avoiding further suffering for individuals who have usually had more than their share. Sometimes it is expressed in terms of compassion, or a desire to mark acceptance of people who are different.

 320. Secondly, acknowledging the sex-reassignment assists the individuals to integrate into society. In their re-assigned sex, they are more likely to live comfortably in society and to contribute to it.

 321. Thirdly, whatever might be the position with pre-operative transsexuals, the irreversible surgery that completes the sex-reassignment process provides a convenient and workable line for the law to draw. No significant difficulties are posed by including post-operative transsexuals in their re-assigned sex.

 322. The Australian decisions that accepted the re-assignment of transsexuals in other legal contexts, quite properly, left open the situation of marriage, so that any special considerations relating to it can be considered when the need arose. That need has arisen in this case. An examination of the factors relating to marriage reveals the following.

 323. Firstly, the general themes I have identified above apply equally, or indeed with particular force. In terms of the human rights and situation of the individual, his or her integration into society, and the practicality of the outcome, there are overwhelming reasons to recognise the sex reassignment.

 324. Secondly, an examination of the submissions and the literature does not identify any reasons why the law of marriage should diverge from the general law. Indeed, there are good reasons specific to marriage for recognising the re-assignment. Doing so would be likely to promote the interests of others, in particular the spouses and children involved. Failing to do so would lead to the odd result that a person who appears to be a man, who functions in society as a man, and whose body can never function as a woman's body and has most of the characteristics of a man, would be entitled to marry a man.

 325. Thirdly, to recognise the sex-reassignment would bring marriage law into conformity with other areas of law. Refusing to recognise it would mean that the words "man" and "woman" have a special technical meaning in marriage law, different to their general meaning. That result, while logically possible, is highly undesirable.

328. Because the words "man and "woman" have their ordinary contemporary meaning, there is no formulaic solution to determining the sex of an individual for the purpose of the law of marriage.204 That is, it cannot be said as a matter of law that the question in a particular case will be determined by applying a single criterion, or limited list of criteria. Thus it is wrong to say that a person's sex depends on any single factor, such as chromosomes or genital sex; or some limited range of factors, such as the state of the person's gonads, chromosomes or genitals (whether at birth or at some other time).   Similarly, it would be wrong in law to say that the question can be resolved by reference solely to the person's psychological state, or by identifying the person's "brain sex".

 329. To determine a person's sex for the purpose of the law of marriage, all relevant matters need to be considered. I do not seek to state a complete list, or suggest that any factors necessarily have more importance than others. However the relevant matters include, in my opinion, the person's biological and physical characteristics at birth (including gonads, genitals and chromosomes); the person's life experiences, including the sex in which he or she is brought up and the person's attitude to it; the person's self-perception as a man or woman; the extent to which the person has functioned in society as a man or a woman; any hormonal, surgical or other medical sex reassignment treatments the person has undergone, and the consequences of such treatment; and the person's biological, psychological and physical characteristics at the time of the marriage, including (if they can be identified) any biological features of the person's brain that are associated with a particular sex. It is clear from the Australian authorities that post-operative transsexuals will normally be members of their reassigned sex.

I don’t think that holding a GRC for those born abroad is really of any value under these circumstances, and the same for an amended BC granted to Australian born TSs. It appears that we are all discriminated against here, because the Federal Government does not fully recognise us at law!

 A UK GRC is an instrument of UK legislation and has little or no relevance in most of Australia other than Victoria which has a specific provision in legislation to give it recognition under Victoria's laws. Its prime purpose is to allow a person born in the UK to obtain a corrected birth certificate and give them other rights pertaining to their status in the UK. Once they have that corrected birth certificate, they are automatically accepted as members of that affirmed contemporaneous sex for all legal purposes of the laws of Australia unless a doubt is raised. In that case, a court of competent jurisdiction will decide the question on the basis of all the evidence. That is why I continue to express doubts about the legal status in Australia (and most other countries) of those who are issued with a GRC in the UK without having undergone SAS... without surgery they almost certainly fail the Re Kevin test.

I think I am correct in assuming that the passport letter you sent me was in relation to someone who has not had surgery or remains in a prior valid marriage. If the former, then they are still regarded by the law as members of their birth sex, no matter what their gender identity might be.

For those of us who remain in a marriage entered into prior to undergoing SAS, the true legal situation has been obscured. The APO, like the Victorian Parliament when it included the "unmarried" criterion in its amendment to the BDMA, is taking the common law as to validity of marriage and applying it, incorrectly in my view, to the matter of instruments such as passports and birth certificates. It is all about their fear of "same-sex" marriage and has nothing to do with either the law or simple common sense.

Kaz


Sunday, May 06, 2007 2:58 PM

From: Karen Gurney

Sent: Sunday, May 06, 2007 2:58 PM

To: Kathy Noble

Subject: RE: Re Passport letter

Hi Kathy

This is another excerpt from Re Kevin...

Sex reassignment of a married person

302. In order to be as thorough as possible, I now consider the situation where a person who is already married completes gender reassignment. This might be thought rather unlikely, but it is precisely the hypothetical situation envisaged by Ormrod J (in a passage quoted earlier) to show that it would be "bizarre" if the reassignment were to be recognised. For ease of discussion, I make it specific:

Jane, a female to male transsexual, had married Bill, and they adopted a child. Jane later successfully went through the gender reassignment process at age 50, changed his name to John, and then wished to separate and marry a woman.

303. What would be the position if the marriage law were to recognise the re-assignment? The marriage would I think still be valid: its validity would be determined as at the date of the marriage, and I would not think it would become invalid by reason of the reassignment.198 After a year's separation, either party would be able to apply for a divorce. The Family Law Act would apply in the usual way to deal with any questions of property division or spousal maintenance. John's obligations to his adopted child would be no different to those of any other divorcing parent. Consistently with virtually all other aspects of his life, except chromosomes, John would now be treated as a man for marriage as well as other legal purposes, and could remarry, to a woman.199 No obvious difficulties would appear to flow from this, and none were suggested in argument. Nor have I been advised of any difficulties that have arisen in other jurisdictions, such as New Zealand or many European countries, where the re-assignment is recognised for the purpose of marriage law.

304. I now consider the position if Corbett is correct, and the marriage law continues to regard John as a woman. His marriage to Bill would of course be valid. The law would not however prevent John from going through the gender reassignment process, separating, and then obtaining a divorce. John would have the usual legal obligations to his adopted child. He would be free to live his life as a man. He would be free to form a de facto relationship with a woman. He would now perceive himself to be a man, look like a man, and be accepted as a man by family, friends and work colleagues. He would treated as a man for a variety of legal and social purposes: his birth certificate, passport and other documents would all show him to be a man. He would have no female physical characteristics other than chromosomes, and would be physically incapable of functioning as a woman. Under the law of marriage, if Corbett is right, John would be entitled to marry a man, but not a woman. Ironically, to the outside world such an event would appear to involve a legal marriage of a same-sex couple. 200

305. If a word such as "bizarre" is to be used, it would seem more apt to describe the consequences of the Corbett approach than the consequences of recognising the reassignment.201 However I do not think such language is helpful. The fact is that the assignment of transsexuals to one category or the other will inevitably mean that some of the person's characteristics will be those of the "other" sex. The law's task, in this area through the definition it gives to the everyday words "man" and "woman", is to reach a conclusion that is just, compassionate and sensible. I am satisfied that if Corbett were to be followed, this aspect of Australian law would have none of these characteristics.

That's how I see the decision of the APO to refuse a passport in their affirmed sex to someone who has had surgery... Bizarre!!!

Kaz



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