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

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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