On The Legal Front

by Rachael Wallbank

(The Gender Centre advise that this article may not be current and as such certain content, including but not limited to persons, contact details and dates may not apply. Where legal authority or medical related matters are cited, responsibility lies with the reader to obtain the most current relevant legal authority and/or medical publication.)

Legal Services News

Last issue announced the commencement of this new service to our community. I am happy to report that the number of people utilising this service has been increasing steadily, while at the same time the variety of legal issues being raised each Thursday night is expanding.

My records show that I have dealt with about 36 individual legal matters or enquiries on behalf of individual community members since 4th August, 1994 ­that is an average of 3 new matters discussed with individuals and dealt with each 2 hour evening.

It is particularly welcome that more people are now corning in to meet me to discuss their legal issues in person and that enquiries are now being made from people outside the gender community interested in legal issues affecting our community such as political assistants and journalists.

Above all, though, I hope more individuals will feel free to contact me with their legal problems as this service, and myself, become better known in our community. It doesn't matter how trivial or minor you think your question or enquiry might be. If you are worried about any legal issue then it is important enough for us to deal with it.

In these circumstances I think it is most useful to use this article to highlight some of the most common issues and solutions dealt with by this service to date in relation to Bureaucracy and documenting Gender Change.

It is apparent that one of the biggest "bug bears" of members of our community undergoing gender change is the conflicting and various requirements they are being met with from various Public Servants and other Government and Semi-Government Officials. It is apparent that different Public Servants provide quite substantially different advice as to requirements to different individuals and demonstrate the failure of different Government Departments to provide a standard or clear policy to their employees with regard to gender issues. This situation may also reflect the varying individual attitude of different public servants to gender change. The following are the correct current standard requirements in relation to the documentation to obtain recognition of gender name change and social gender status which my enquiries have been able to establish:

Drivers Licence

One can effect a change of name and gender status does not appear on the face of the New South Wales Drivers Licence, but gender status will not be altered with regard to departmental records without evidence of surgical genital change. The documentation normally required is a Deed Poll as to the change of name (or certified copy), a letter from a medical practitioner confirming membership or admittance for "gender re-assignment" consideration ("Medical Letter A") and, with regard to a formal change of gender status, a letter from your surgeon confirming the satisfactory completion of surgical genital change ("Medical Letter B") (and please don't ask me what "satisfactory" is supposed to mean).

Australian Taxation Office, Banking Institutions, Employers, Electoral Office and General Insurance Office

These institutions and entities will normally change both name and gender status upon receipt of an appropriate covering letter enclosing a certified copy of Deed Poll and Medical Letter A as referred to above;

Medicare and Private Health Insurance Companies

At the moment the situation with regard to these institutions is conflicting. Some correspondence received would indicate that these institutions would be prepared to alter their records as to gender status as well as name on the receipt of a certified copy of the Deed Poll and the Medical Letter A as referred to above, while other correspondence indicates that such entities will not effect change in their records as to formal gender status without evidence of the satisfactory completion of surgical genital change. We will attempt to clarify this matter in the near future. At the same time in terms of health benefit cards only the name appears in the same way as is applicable to your drivers licence;

Passports

Issues have been raised with regard to both Australian and British passports and it would appear that both the Australian Department of Foreign Affairs and the British Authorities in Australia have the same requirements in respect of the issue of full passports in a new name and gender status. As full passports bear a gender indication, for all practical purposes it is not sufficient to merely have your change of name recorded without a change in gender status. For this to be done the normal passport documentation and proof of identity needs to be supplied plus a certified copy of your Deed Poll evidencing change of name plus a Medical Letter B referred to above from your surgeon confirming the satisfactory completion of genital change. For Australian citizens there is an alternative available to "non-operative" or "pre-­operative" transsexuals which recent changes to Department of Foreign Affairs Policy make a practical alternative to a full passport for many travel purposes.

This alternative travel document which is called a "Document of Identity" now looks almost identical to a passport, costs a lot less, does not state gender status and can be obtained by supplying the normal passport application and documentation, a certified copy of a Deed Poll for change of name purposes and a Medical Letter A. Such a document has been traditionally used by business people for short term business purposes but as I have confirmed with a most helpful Senior Member of the Department of Foreign Affairs & Trade in Sydney, this document can be freely used by anyone and would be an ideal document for members of our community living in a changed social gender status but who have not had any genital surgery carried out. This Document of Identity will enable full and unrestricted travel access, subject to visa requirements, to places such as Fiji, France, French West Indies, Great Britain, Hong Kong, India, Ireland and many other countries. The use of such document for travel to Canada, United States and New Zealand is restricted by certain conditions which, for example in the case of New Zealand, is only that the document has least 6 months validity beyond the proposed date of exit from New Zealand. I do not know if Polare will have sufficient space but I have provided to the Gender Centre the Department of Foreign Affairs & Trade Annexure 30 which contains a full list of all countries accepting this document of Identity plus details of restrictions where applicable for your reference. The use of this document really does remove huge problems in relation to the restriction of pre-operative and non-­operative transgendered travellers. If you have any serious problems with regard to passports you should contact me as I am in a position to take individual passport issues up with my Senior contact in the Department of Foreign Affairs and Trade in Sydney.

Birth Certificates, Recognition of Legal Marriage and De Facto Relationships and Social Security Rights and Entitlements.

At the present time, unless you are born in South Australia and can take advantage of the reasonable legislation that exists in that state of this country, it is only possible to have the Birth Certificate note upon its face a change of your name no matter what documentation you supply. In order to even have that kind of notation made upon your Birth Certificate, which will in no way alter your original birth name and gender status, you have to supply evidence of your change of name by way of Deed Poll and a Statutory Declaration confirming the use of that new name for at least a 12 month period.

There is no legal recognition of any De facto or legal marriage except between 2 people who can produce Birth Certificates to prove that they were recognised at birth as being of different biological sex. It is perversely satisfying that in this instance at least the transgendered community is equally discriminated against with the gay community in our society when in so many other respects the gay community has won for itself substantial anti-discrimination legislation whereas the transgendered community has yet to receive any such protection or recognition from Government.

Unfortunately, due to space restrictions I can only mention the Case No: N.N.G.745 of 1992 in the Federal Court of Australia New South Wales District (Full Court) called Secretary Department of Social Security -v-; "SRA" the decision in such case being handed down on 1st December, 1993. I will provide a further and more detailed discussion of this case in a future issue of Polare as I believe this decision by the Full Court of the Federal Court will be crucial in laying down future Transsexual/Transgender rights in this country. In the reasons for judgment the primary Judges in this case quite clearly affirm the need for Government legislation recognising a full right of change of gender status for transsexual persons who have had their genitals altered and I believe it will be difficult for the various State Governments and Government bodies to long resist the legal pressure now mounting from within the "establishment" to provide full legal recognition of gender change. I believe this case could be used to enforce such full recognition now in all matters excepting those relating to Birth Certificates and marriage. At the same time this decision will enable any politically active members of the gender community to increase the political pressure being brought to at least alter the present laws in relation to original Birth Certificate alteration for "operative" or "post-operative" transsexuals. This case fairly and squarely makes the legal statement that the recognition difference between a male person and a female person is the state of that persons genitals and states the clear decision that if such genitals have been altered as the end result of a gender re­assignment procedure then that person should be considered to be for all legal purposes the sex that such genitals then resemble. Of more immediate importance is the recognition by the Judges in that case that in determining this test of a persons sex that such genitals then resemble. Of more immediate importance is the recognition by the Judges in that case that in determining this test of a persons sex that injustice has inevitably been caused to those who cannot, either for health or financial reasons afford the costs of such genital alteration surgery. Now that the matter has been squarely identified in an Australian Federal Superior Court there is now every reason to believe that a human rights and a general democratic issue or argument can now be brought to bear to at least have the Medicare rules altered so that Australian Citizens rights should not be discriminated against on the basis of money and so that the costs of such surgery to the individual can be lessened.

Obviously there is much more to do in this area and the writer proposes to firstly carry out a Survey of relevant Government Departments to obtain a formal written statement from each of them as to their policy in relation to recognition of social gender change so that such policy documents can be kept at the Gender Centre and copies made available to members of our community to enforce standard procedures with individual Government Employees who may be otherwise uncooperative.

In the meantime I am grateful for the support of all, especially the staff and management of the Gender Centre, and look forward to being of further service in the future.

Polare is published in Australia by The Gender Centre Inc. which is funded by the Department of Community Services under the S.A.A.P. Program and supported by the N.S.W. Health Department through the AIDS and Infectious Diseases Branch. Polare provides a forum for discussion and debate on gender issues. Advertisers are advised that all advertising is their responsibility under the Trade Practices Act. Unsolicited contributions are welcome, though no guarantee is made by the Editor that they will be published, nor any discussion entered into. The editor reserves the right to edit such contributions without notification. Any submission which appears in Polare may be published on our internet site. Opinions expressed in this publication do not necessarily reflect those of the Editor, The Gender Centre Inc.I, the Department of Community Services or the N.S.W. Department of Health.