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Launch of Sex Files: the legal recognition of sex on documents and government records (2009)

Rights Rights and Freedoms

Launch of Sex Files: the legal recognition of sex on
documents and government records

Graeme Innes AM

Tuesday 17 March 2009

Parliament House, Canberra


I would like to begin by acknowledging the traditional owners of the land on
which we meet, and by paying my respects to their elders past and present.

Welcome to the launch of Sex Files: the legal recognition of sex on
documents and government records
, the concluding paper of the sex and gender
diversity project conducted by the Australian Human Rights Commission.

I especially welcome those of you who participated in our sex and gender
diversity project consultations and meetings last year, including those who have
travelled from outside the ACT to be here today.

I would also like to thank Senator Louise Pratt who kindly agreed to launch
Sex Files at Parliament House. I will introduce Senator Pratt and Peter Hyndal,
the other speakers today, in a moment. But first I would like to speak briefly
about how the sex and gender diversity project came about, and why the legal
recognition of sex is a significant human rights issue for people who are sex
and gender diverse.

As most of you will be aware, in 2007 the Australian Human Rights Commission
conducted a National Inquiry into Discrimination against People in Same-Sex
Relationships: Financial and Work-Related Entitlements and Benefits (Same-Sex:
Same Entitlements Inquiry). During this Inquiry, the Commission received
submissions from members of the sex and gender diverse community –
including people who identify as transgender, transsexual and intersex - about
the discrimination they experienced. While these concerns were beyond the
Inquiry’s terms of reference, they were compelling human rights
stories.

So in 2008, the Commission decided to explore some of the human rights issues
raised in more detail. In May we released an Issues Paper, asking for comments
from organisations and individuals on the most pressing human rights issues for
people who are sex and gender diverse - and what should be the focus and scope
of the Commission’s project. We received just over 50 formal responses to
our Issues Paper, raising such issues as access to health services, protection
from discrimination and concerns about surgery on intersex infants. However,
there was one issue that was mentioned more than the others: that is, the
difficulties in changing and correcting documents to reflect a person’s
lived-in sex and gender identity.

As a result, the Commission decided that the sex and gender diversity project
would focus on the legal recognition of sex in official documents and government
records. The project then went on to gather information about the current system
for recognising sex and gender, and how it could work better. We held public
meetings across Australia, consulted with state, territory and federal
government agencies, and also launched an on-line blog – called Sex Files.

In our consultations and the blog, people talked about difficulties with
birth certificates, passports, citizenship certificates and many other official
documents necessary for daily life. Most of the problems reported were due to
the limitations imposed by legislation or particular policies in relation to
changing cardinal documents or records.

In particular, people raised the fact that the existing process for the
recognition of sex generally excludes:

  • married people
  • people who have not undergone genital surgery or other sex affirmation
    surgery.

People also raised difficulties for:

  • people who cannot provide medical evidence
  • children and young people under 18
  • people who wish to be identified as something other than male or
    female.

In addition, the current processes are inconsistent and
complex.

The concluding paper goes into these problems in more detail, and makes
recommendations to address these concerns. However, I wish here to make the
point that the impact of these problems on people’s lives is substantial,
and goes far beyond an inconvenience of dealing with a complex bureaucratic
system. This is because the lack of legal recognition of sex identity not only
can limit your daily life - it goes to the core of a person’s sense of
worth and belonging.

We were told by one person that:

Having documents that reflect one’s sense of identity is important for
employment, access to healthcare and medicines and also for self affirmation and
acceptance by the government that - yes -this is who you really are.

If you are denied that ability to be yourself, then it has repercussions for
the way you life your live, and your relations with other people and your
community.

In December 2008, 66 nations at the United National General Assembly
supported a groundbreaking statement confirming that international human rights
protections include gender identity and sexual orientation. Australia was a
signatory to the statement.[1]

That statement made it clear that people who are sex and gender diverse have
the same human rights as everyone else. The right to non-discrimination, to
equality before the law, to privacy, to protection from violence and to freedom
of movement – these are but a few human rights that are particularly
important to people who are sex and gender diverse.

Human rights are about equality and dignity for everyone. All human beings
deserve recognition of and respect for their sex or gender identity.

The question of dignity was brought home to me in the words of another person
who participated in our online blog:

I simply wish to have the same rights as everyone else. I have a PhD and I
teach at a university, I do volunteer work and participate at a number of local
sports clubs. I'm a good teacher, a good son, a wonderful friend and a generally
kind, loving and compassionate individual. In short, I'm an upstanding citizen.
And I have, for the most part, a very normal life. Apart from my family, nobody
in my social or professional networks knows that I was not born male. But like
so many other people who are denied the right to have their legal documents
reflect the gender that they live as, I feel quite strongly that I am still
being denied the right to live a life of quiet dignity.

The recommendations are detailed in the paper. However, in summary they
include:

  • marital status should not be a relevant consideration when someone requests
    a change in legal sex
  • surgery should not be the only criteria for a change in legal sex, and
    evidentiary requirements should be relaxed
  • people should be able to choose to have an unspecified sex noted on
    documents
  • the federal government is encouraged to take a leadership role in achieving
    national consistency in this area.

I want to thank the hundreds of
people around Australia who contributed to this project by meeting with me and
my staff, writing submissions and participating in our Sex Files blog. Your
views have been crucial in shaping our project and the project’s final
recommendations.

I also wish to thank Sarah Winter, our former colleague from the Australian
Human Rights Commission, who was largely responsible for organising the
consultations and drafting the papers from the project.

I have been touched and moved by the people in the sex and gender diverse
community who have made it very clear that they only want one thing: to be
recognised for who they are.

I hope this paper leads to action by the Australian government to create a
fairer and less complicated identification system that recognises sex and gender
diversity. I encourage you to use the recommendations in this paper to advocate
for the protection of the human rights of people who are sex and gender diverse.

Thank you for the chance to speak with you today.


[1] The French, who initiated the
statement, have created a website (http://www.droitslgbt2008.fr/) with an
attached document (PDF format, which can be downloaded from http://www.droitslgbt2008.fr/documents/?mode=download&id=2)
in French (pages 1-2), Spanish (pages (3-4) and English (pages 5-6).

 

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