Sex And Gender Education (SAGE) Australia

SAGE's first submission to HREOC

Human Rights Equal Opportunities Commission (HREOC) Needs to Widen Study into Inequality for Non-Stereotypical Sexed and Gendered People.

By Dr Tracie O'Keefe DCH (Sexologist) 28 April 2006

This paper is written for and on behalf of Sex and Gender Education (SAGE), Australia, a civil rights and campaigning group for sex and gender diverse people. This paper forms the submission to HREOC in response to its national inquiry into discrimination against same-sex couples in relation to financial and workplace entitlements, named Same Sex: Same Entitlements.

Background

SAGE was alerted to this inquiry via a news story which appeared in GLBTI weekly magazine, SX, on 6 April, 2006 by Katrina Fox, which appears below:

Same-Sex Entitlements Put on Human Rights Agenda
HREOC to identify discriminatory policies against same-sex couples

A national inquiry into the discrimination faced by same-sex couples in accessing financial and work-related entitlements was launched this week by the Human Rights and Equal Opportunity Commission (HREOC).

The inquiry will carry out an audit of Commonwealth, state and territory laws to highlight areas where same-sex couples are denied benefits available to heterosexual couples, including workplace leave entitlements, social security benefits, tax concessions, Medicare and the Pharmaceutical Benefits Scheme, superannuation, workers' compensation, veterans' and judicial pensions and inheritance.

As well as consulting relevant government departments, HREOC is also calling for GLBT people to submit their personal stories of discrimination.

At the end of the inquiry, it will release its findings and make recommendations to the Federal Government on changes needed to eliminate discrimination.

While the commission has no power to force the government to make changes, HREOC president John von Doussa said it would "pay attention to international human rights laws" which could be used to "name and shame" Australia.

"The problem is that with same-sex relationships - things based on personal status - there is no tribunal you can go to in Australia at the federal level," he told SX. "A complaint could be taken to the Human Rights Committee in Geneva, which is a procedure set up for an individual who has exhausted all domestic remedies to bring a complaint. That body will investigate and if it feels there is a breach, it will report accordingly to the government and recommend it do something about remedying the situation. But the government doesn't have to act."

Gay and Lesbian Rights Lobby convenor Laurie Berg said bringing the country's discriminatory policies to the attention of the Human Rights Committee was something the lobby would consider. "It does two things," she told SX. "Firstly it raises the profile [of the issues] and tells people's stories, and secondly it sets the scene so that it makes it easier for future governments to legislate in that it might clarify if they can, under the constitution, change a law."

The launch of the inquiry coincides with Attorney-General Philip Ruddock's move to overturn a bill by ACT Chief Minister Jon Stanhope which would legalise gay civil unions in the territory, and Prime Minister John Howard's comments that he would not support the legislation because it equated civil unions with marriage. "There is a special place in Australian society for the institution of marriage, as historically understood, and we do not intend to allow that to be in any way undermined," Howard said last week.

On 3 April, 2006 HREOC announced a project to look at areas of inequality facing lesbians and gay men particularly focusing on what it described as "same sex" relationships. This project was formulated to address inequalities in the law and will give recommendations to the government how it may make the law more equitable (http://www.hreoc.gov.au/samesex/index.html). Gay men and lesbians may not get married in Australia at the moment and also suffer many other connected disadvantages and lack of recognition of their identities and relationships.

In its enthusiasm HREOC has bought into a bipolar male and female concept of human beings which is a misrepresentation of biology. Over the past 50 years with the evolution of anatomy, genetics, and medical sciences it has now been seen that there are many people who do not fit the bipolar male/female biological model (Dreger, 1998), (Dreger 1999), (O'Keefe, 1999). Taking note of at least 300 kinds of intersex conditions it is plain to see that at least 1% of the population has some kind of deviation biologically from the average male and female (Diamond 1997), (O'Keefe, 1999).

Those deviations from the average can manifest themselves as primary and secondary sex characteristics, hormonal deviations, genetic variations, and in behavioural and social presentations (O'Keefe & Fox, 2003). Many people who are intersexed are raised and become comfortable with their assigned sex at birth of either male or female. Some people who are intersexed, however, are not comfortable with the label male or female and wish to be known as and may wish to be registered as intersexed (Dreger 1999).

The following article appeared in SX, 9 March, 2006:

Census Caters for Intersex & Androgynous People (but still allocates male or female)

Intersex and androgynous people in Australia will no longer be forced to tick the male or female box on the Census. While the 2006 Census has already been printed without the two new fields, the position of the Australian Bureau of Statistics (ABS) is that it will not coerce respondents into making a declaration about their sex which they consider to be inaccurate.
In a letter to intersex activist Chris Somers, xxy, Dave Nauenburg, director, Population Census Development and Field Organisation, speaking on behalf of Dennis Trewin a CEO of the ABS said: "My advice to intersex people is that they can complete the sex question correctly by ticking none of the boxes provided for the question, and writing in the word 'intersex', or 'androgynous." Paul Williams, head of the Census program at the ABS, confirmed this was the organisation's official stance. "Also for transgendered people, we are happy for them to tick the box which most accurately describes their situation," he told SX. "Quite often transgendered people identify with a particular sex, so it's up to them what they put. If they feel they identify as both or neither I'm happy for them to write in whatever."
However, intersex and androgynous people will not be officially counted as such, instead being randomly allocated as either male or female by an automatic computer program, Williams added. "We will be will imputing them to male or female," he said. "We still have to produce statistics by the numbers of males and females.
So, as we can see, the Australian census form now no longer forces people to tick either male or female. In the future, around 2011, the time of the next census, it is anticipated that the form will in fact have three boxes: male, female and other. This will avoid people who are identified as intersex or androgynous having to give false information by describing themselves as a sex other than what they are.

The following item was broadcast as part of The Health Report on Radio National, Monday 25 February 2002:
Boy or Girl, with Rae Fry
http://www.abc.net.au/rn/talks/8.30/helthrpt/stories/s490535.htm

Chris Somers: When people see me, they see a male primarily, because on the outside of me I've got a beard, and male-pattern baldness. This has all been basically medically induced because I take testosterone every other week. Thus, over time, of course, I have a broken voice, and my voice broke actually two years ago for about the fifth time, where I have no register now. A few years ago I had an ultrasound; that ultrasound revealed that I have ovaries, an internal collapsed vagina, the possibility of a uterus, though I think that is perhaps not the case. When I was a younger person, in my mid-20s, occasionally people used to ask me 'Oh, by the way, what sex are you, Chris?' I used to say, 'Well, anything you like', and whereas I might be saying that semi-jokingly, I was also extremely serious, but at the same time I was very scared of revealing too much, because of the consequences of that revelation.

Chris considers him/herself as androgyne, being neither strictly male nor female, therefore it would be impossible for Chris to be in an opposite or same-sex union or relationship.

In 2003, intersex person Alex MacFarlane became what is believed to be the first person in Australia to hold a passport identifying Alex as neither male nor female, but simply as X, the West Australian newspaper in Perth reported on 11 January 2003 (Butler, 2003). MacFarlane is 47XXY, a form of androgyny, although not all 47XXY people identify as androgynous, with some identifying as male or female. The Department of Foreign Affairs and Trade amended its passport processing system to allow for an X as well as the usual F and M for male and female.

The following extract is the personal experience of Norrie May-Welby, steering committee member and spokesperson for SAGE:
(from SAGE website www.sageaustralia.org)

I commenced transsexual hormone treatment in 1985, moved to Sydney in '88, and had genital realignment surgery here in 1989. As a modern-thinking woman, I began questioning the social norms of gender and sex and their policing, and co-wrote a series on gender/transgender for the Sydney Star Observer in 1991. Through being exposed to post-modern deconstructionism, learning about the existence of human hermaphrodism through Anne Faust-Sterling's Five Sexes, and digesting Susan Stryker's My Words to Victor Frankenstein... my own gender identity shifted somewhat. I now view my physical body as a beautiful eunuch, my soul as hermaphrodite, my social gender as mostly 'woman' and sometimes more or less, and nothing human is alien to me.

As can be seen from Norrie's statement, Norrie has a sense of shifting sex and gender identity. That means that at some time Norrie may identify as female, male or androgynous and at times, may wish not to be make any declaration about their sex and gender. For Norrie, what seems to be important is not to have to be forced into a situation where Norrie's sex and gender is artificially static. This causes profound difficulties in the law because the law at present only recognises a person as one static sex that is perceived as immovable and constant and for some people that simply is not true.

The present context of gay versus heterosexual human rights

For some years now there have been representations to the Australian Government, both at state and federal level, that gay men and lesbians not only have disadvantages in many areas of society but their family units are not protected by marriage or registered civil union laws. The present Prime Minister John Howard has publicly declared that he does not support gay marriage and is against such implementation by the government (Granger 2006).

Religious leaders, such as the Catholic Arch Bishop of Sydney, George Pell, have also made homophobic remarks that they are against gay people having equal civil rights compared to the ordinary heterosexual man and woman in the street (Pell, 2001). His prejudices constantly influence Australian people, encouraging hate and lack of acceptance of the whole GLBTI community.

Spain, Holland and Canada have legalised gay marriage, and while many countries move towards that situation, Australia is in the throes of a moralistic backlash from religious sectors which have politicians in their pockets in a fight for votes and competition. Hand in hand both religious leaders and right-wing politicians court each other, not only to stop gay marriage, but also to oppress androgynous groups who neither fit into the gay liberation argument or into the transsexual liberation argument. (Same-sex marriage in Spain, Wikipedia, 2006), (Gay Marriage Goes Dutch, CBS New, online 2001).

Rights of Transsexuals

In many countries the rights of transsexual persons who cross legally from male to female or vice versa have also improved. This includes the right to marry, have birth certificates changed and more security around the areas of employment. Australia, although not perfect, has made great strides in this area (Family Court of Australia Judgment on the Validity of a Transsexual Marriage, 2006).

There is, however, still a great amount of public homophobia and transphobia in Australia that leads to discrimination. That discrimination can be either overt or covert and the law is still deficient in protecting gay, transsexual, transgender, androgynous and intersex people, often not understanding the difference between the different groups.

Sex and gender identities at the bottom of the social pile

This paper concerns itself with people who primarily identify as neither gay nor transsexual although they may be either, neither or both. In different cultures there can be plural and multiple sex and gender recognitions that allow people to express their physical and social selves freely (Roscoe, 1998). This paper is concerns itself with the rights of people who identify as:
Intersex: People who were born overtly biologically intersexed and may identify as being neither male or female, or as both.
Neuter: People who do not identify as any sex or gender.
Androgynous: People who do not present as either male or female but perhaps both.
Shifting Andgrogynous: People whose identities are sometimes male, sometimes female and other times neither.
Transgender: People are physically one sex but socially present as another gender identity (this does not include transsexual people), (Prince, 1973).
Transsexual Gay: People who may have transitioned from one sex to another legally but then identify as gay post-transition.
The myriad of sex, gender and sexuality identities that manifest biologically, socially and legally mean that many of the above people are seldom covered, when it comes to civil rights, by a bipolar male female legal system.
Recommendations

HREOC needs to widen its brief to focus on examining the lack of equality to include all Australians who are sex, gender and sexuality diverse, some of whom are plainly neither exclusively male nor female. To restrict its study solely to gay men and lesbians is reductionist and discriminatory because it does not examine the lack of equal rights of people who do not identify as strictly heterosexual male or female, nor a gay male or lesbian.

If HREOC restricted its study, this would cause a further ghettoisation of the people who are the central focus of this paper because they then become further marginalised and isolated in law. Since HREOC is in the early stages of its study it would be judicious at this stage and more expansionary to change the axis of its focus to examine the legal disadvantages for all people who are not identified as traditionally male or female heterosexuals or homosexuals.

Any alteration to the Marriage Act or any such legislation needs to be framed as a 'Union of People' and not one male and one female or same-sexed people. Considering that HREOC would be in position to make recommendations to the government for changes in law that would see Australian laws fall in line with its own national ethos of a 'fair go for all', it should also eliminate its own sex and gender bias.

Bibliography

Books

Dreger, Alice Domurat, Hermaphrodites and the Medical Intervention of Sex. Harvard Universit Press, USA, 1998.

Dreger, Alice, Domurat, Intersex in The Age Of Ethics. University Publishing Groups, Maryland, USA, 1999.

O'Keefe, Tracie (ed) & Fox Katrina (ed), Finding The Real Me: True Tales of Sex and Gender Diversity. Jossey-Bass, USA, 2003.

O'Keefe, Tracie, Sex Gender & Sexuality: 21st Century Transformations. Extraordinary People Press, London UK, 1999.

Roscoe, Will, Changing Ones: Third and Fourth Genders in North American Cultures. MacMillan, UK 1998.

Papers

Duamon, M & Sigmundson, HK, Management of Intersexuality: Guidelines For Dealing With Persons With Ambiguous Genitalia. Archives of Pediatric and Adolescent Medicine, Vol. 151, October 1997, pp 1046-1050.

Prince, Virginia, Sex Vs Gender, first published in DR Laub and P Gandy (eds) Proceedings of the Second Interdisciplinary Symposium on Gender Dysphoria Syndrome, Stanford University Medical Center, Stanford, California, 1973 pp 20-24, reprinted in International Journal of Transgenderism, official journal of Harry Benjamin International Gender Dysphoria Association (HBIGDA), vol 8, number 4, 2005, Haworth Press, USA.

Newspapers and Periodicals

Butler, Julie, X Marks the Spot for Intersex Alex, West Australian, 11 January 2003.
http://www.sageaustralia.org/docs/West%20Australian%20Newspaper.pdf

Fox, Katrina, Census Caters for Intersex & Androgynous People, SX, 9 March 2006. www.sxnews.com.au

Fox, Katrina, Same-sex Entitlements Put on Human Rights Agenda, SX, 6 April, 2006. www.sxnews.com.au

Internet

Granger, Johnathan, PM Won't Allow 'Gay Marriage' Plan, The Age, 31 March, 2006.
http://www.theage.com.au/news/national/pm-wont-allow-gay-marriage-plan/2006/03/30/1143441279521.html

Welby, Norrie May, spokesperson for SAGE.
http://www.sageaustralia.org/

Pell, George, statement regarding Spectrum article on 'gay' priests
On the slanders and exaggerations of Mr Michael Kelly regarding 'gay' priests.
20 August 2001
http://www.sydney.catholic.org.au/Archbishop/Addresses/2001820_228.shtml

Same-sex marriage in Spain, From Wikipedia, the free encyclopedia
http://en.wikipedia.org/wiki/Same-sex_marriage_in_Spain

Gay Marriage Goes Dutch, CBS News on line, April 1st, 2001.
http://www.cbsnews.com/stories/2001/04/01/world/main283071.shtml

Family Court of Australia Judgment on the Validity of a Transsexual Marriage, 2006.
http://home.vicnet.net.au/~aissg/family_court_judgement_on_transsexual_marriage.htm

Radio Program

Fry, Rae, Boy or Girl, The Health Report, Radio National, 25 February 2002
http://www.abc.net.au/rn/talks/8.30/healthrpt/stories/s490535.htm

SAGE's second submission to HREOC

By Dr Tracie O'Keefe DCH sexologist, individual and family therapist, Norrie May-Welby, Aids Council of New South Wales (ACON), Elizabeth Riley General Manager of the Gender Centre Sydney, Grace Abrams and Jack Powell.

After a meeting between Samantha Evans & Vanessa Leslie from the NSW HREOC, Tracie O'Keefe, Norrie May-Welby and Elizabeth Riley on 14.6.06 SAGE was asked to put in a further and second submission to the commission to help it understand the concerns of SAGE members.
This document can be best understood by being read in conjunction with:

SAGE's submission to HREOC April 2006
http://www.sageaustralia.org/HREOC.htm

Sex & Gender Identity Guidance Document for Australian Government Employees
http://www.sageaustralia.org/documentssage.htm

HREOC is presently in a consultative stage gathering information to help it review the inequality of laws in Australia concerning people in intimate relationships. HREOC was initially exploring discrimination against same-sex couples in accessing financial and work-related entitlements and benefits. The enquiry was specifically focusing on the inability for gay and lesbian couples to attain the same equal rights, in law, as stereotypically heterosexual couples. Since the meeting with SAGE it seems that HEROC are now aware that the focus of the enquiry might be better focused on the inequality between all persons living in intimate cohabiting primary relationships without prejudice concerning sex, gender or sexuality.

THE HREOC team is looking into areas concerning:
1. Workplace leave entitlements
2. Social security benefits
3. Tax concessions
4. Medicare and the Pharmaceutical Benefits Scheme
5. Superannuation entitlements
6. Workers' compensation
7. Veterans' pensions and entitlements
8. Parliamentary entitlements
9. Judicial pensions
10. Inheritance

Around one in every 100 people has some form of intersex physical manifestation that can either be atypical genitalia, secondary sex characteristic variations, or deviation on the genetic code from the average XX or XY chromosomes (O'Keefe 1999). There are many different medical conditions that lead to this normal variation in nature. These people and their partners are presently unable to have their relationships recognised, in law, if they identify as intersex, being other than male or female.

Currently, individuals who wish to identify as intersex or anything else other than male or female or heterosexual have a huge battle with bureaucracy. Most people with intersex conditions identify as simply a man or woman and are heterosexual. For those people who do not identify as male or female or heterosexual it is important not to deny their rights to honour their truth about their sex, gender or sexuality as they know it.

The right of transsexual people to be recognised in their current living gender identity is upheld in Australian law for marriage for those who identify as heterosexual but there has been little regard for the status of individuals who identify as gay.

Those people who identify as transgendered, androgynous, or of neuter identity, however, have few rights in law. They fall between the legal gaps that are ultimately designed to exclusively protect heterosexual men and women only. Even when the law protects gay and lesbian people, that can still often exclude sex and gender diverse people.
The Gender Centre (Sydney), that deals with a client group who are sex and gender diverse, currently has 4834 clients and that figure is growing every day. It currently receives approximately five new clients per week (Gender Centre client statistics, 2006).

Norrie's situation

How does non-recognition of my gender affect me?

I am an androgynous person, and always have been. Male and female are not entirely separate options to my mind. Men and women are not separate species to me. I see them as essentially the same as me, as a human being. Because of the discrimination I experienced as a young adult working in the public service with a gender presentation broader than that allowed for males (who were then prescribed only dark colours for shorts, for example), I suffered a reactive depression, and identified myself as female, and underwent the standard transsexual medical procedures. Shortly after the operation, however, which rendered me biologically neuter, I questioned the whole notion of bi-polar gender, that is, that everyone has to be exclusively male or exclusively female with separate gendered behaviours, and re-identified myself as androgynous.

I don't live my daily life as a man or as a woman; I live it as me. I may wear non-gender specific clothes, or I may mix and match. My body is flat of chest and groin. However, I still have to have a gender nominated on my passport, and so face harassment if an immigration official identifies that my gender is at variance with the normative gender stated. Bureaucrats are very unsupportive of me stating my gender as I know it to be. There was a recent survey of the GLBTI community ("Private Lives"), which asked every participant to identify as male, female, transgender male to female, transgender female to male, intersex: male identified, or intersex: female identified. Even intersex people could not identify as other than male or female! I could not honestly proceed past this first question, and felt isolated from a group I previously had some hope of belonging to.

When the Bureau of Statistics conducts the 2007 Australian Census, I will permitted to not lie on the form, that is, to give my gender as other than just male or female, but the truth I tell will then be converted to a lie, that is, everyone who gives an alternative answer will be arbitrarily counted as male or female, via a random computer program. My own government has announced it will systematically make me and my kind invisible.
In lobbying for equal rights for all people to have their primary domestic partnerships legally recognised, I have to insist that we don't just ask for same-sex to be equal to opposite-sex relationships, for this would likely exclude me and other androgynous or intersex-identified people.

I do find it a challenge maintaining my sanity and integrity in a society than does not accept my gender as a legitimate option. Social acceptance of sex and gender diversity waxes and wanes, which makes it more important for our legal institutions to safeguard the rights of each individual to be treated equally, including equal treatment of their domestic relationships.

I am human being, and deserve human rights on that basis, and not have them denied because I cannot establish that I am a man or a woman. Likewise, my rights to have my domestic relationship recognised should be upheld, without regard to whether I have a normative gender or an androgynous reality. To do less leaves me and my partner legally vulnerable, and endangers any dependent children our family might have, legally, socially and in the workplace.

Tracie's Situation

Five years ago I emigrated to Australia. In my country of origin, the UK, I was registered as male at birth and lived until my mid teens as a boy. For the past 35 years, after hormone treatment and surgery, I have lived as female and had a female British passport. I identify as bisexual woman of transsexual and intersexed origin in a lesbian relationship with my female partner of 13 years.

When we lived in England we were unable to have equal rights because same-sex unions were not then legal, so we got married as man and wife, with me using my male birth certificate so that we could protect our inheritance rights and pensions etc. When I came to Australia, my partner came into the country on my visa as my legal spouse. Since that time the Australian immigration department changed its mind and refused to recognise our legal British (heterosexual) marriage and forced my partner to apply for permanent residency as my gay, interdependent partner.
For 35 years I have paid tax contributions towards my UK state pension which entitles my spouse to a UK state pension when we retire or should I die first. We both remain dual citizens of the UK and Australia. For these reasons we cannot get divorced in the UK or my partner will be left without the UK state pension to which she is entitled. The Australian government, when we retire, will not presently recognise our British marriage but will tax us on the UK state pension derived from the fact that we are married in the UK.

Even though the Australian government refuses to recognise our British marriage I may not marry anyone else in Australia because I would be committing bigamy under international law which is an imprisonable offence both in Australia and the UK.

In Australia I can only be regarded in law as female and have an Australian passport as female but in the UK I can only be regarded as male even though I have female British passport. In the UK we as a couple have all the rights and privileges of being a married couple even though we live together as a lesbian couple; but in Australia we do not have equal legal, superannuation, inheritance, taxation, workplace, or medical benefit rights equal to ordinary male/female heterosexuals.

Elizabeth's situation

I am a male-to-female transsexual person and, having undergone sex reassignment surgery, am recognised in my day-to-day life in Australian society as a woman. I was born in the UK and have changed the gender on my birth certificate to female under UK law through the Gender Recognition Act. I hold dual Australian/UK citizenship and have an Australian and a European Union passport, both of which record me as female. My Australian citizenship papers also recognise me as female as do a range of other documentations including Medicare and the RTA. My partner of over eight years is female born and we live together in a lesbian union to which we are committed for life. I am entitled to enter into a Civil Union with my partner under UK law, though such union would not be recognised in Australia.

The main area of contention to which I am denied equality with my heterosexual counterparts lies in the area of superannuation. I am in receipt of a small pension from an old superannuation scheme run by the Government Superannuation Office (GSO) in Victoria that I commenced contributions to in 1978 and which I ceased contributing to in 1991 when I resigned from the teaching service. I have approximately $60,000 held in that fund. The fund provides for the provision of an ongoing payment of two thirds of the pension value to a surviving spouse or to any dependent children. I approached the fund to enquire what the status was in the case of a same-sex union and was advised that they had made provisions for such payments but that these only applied after a certain date and my period of service preceded that date and my partner was, therefore, not entitled to payments in the event of my death.

Because my entitlements in the fund are part of the highly prized 'old scheme' there is financial merit in retaining this as a pension source. However, for the added security of my partner I may have to make a decision to withdraw these funds and place them into another investment vehicle, such as an allocated pension, which would at least allow me to pass on any balance to my partner via my Will. It remains unjust, however, that I should be required to exercise options that would not occur if my relationship was heterosexual in nature. Indeed, due to the problems associated with superannuation discrepancies, my partner and I have actively pursued alternative and less tax-effective financial strategies over the years to acquire adequate assets to provide for ourselves in our future retirement. While superannuation schemes are able to effectively discriminate against non-heterosexual unions, such discrimination not only places a burden on these unions, but also ironically has the potential to place a burden on government resources since individuals who may otherwise have been provided for, may well need to access government benefits.

Grace's Situation

As a lesbian and a post-operative transsexual woman, I have experienced a lot of prejudice, discrimination and exclusion, which has been aided and abetted by the way our legal system treats anyone outside the hetero-normative paradigm.

Prior to my sex reassignment surgery, I was not legally recognised as female, even though I had been living as a woman for four years. When I was homeless in Sydney, I was housed by Wesley Mission in their Edward Eager Lodge. In this service, transsexual women who are pre-operative were housed with homeless men, in spite of the obvious risks to their safety and wellbeing.

In 2002, I suffered discrimination in employment, when I applied for a position and was rejected based on my transsexual status. This case was settled in mediation and I was awarded a small payout, but I suffered financially due to being refused employment and the process was long, stressful and adversarial.

In 2005 I wished to marry my female partner, but was only able to do so because of the technicality that I was still pre-operative and hence considered male for the purposes of the Marriage Act. Both my partner and me would have preferred to enter into a same-sex marriage as we felt that would have better reflected the reality of our relationship as a lesbian couple. But that option was not open to us.

Part of the reason for marrying prior to the surgery was to ensure that my partner would be legally recognised as my next of kin, otherwise if something unforseen happened to me, my family may be consulted instead and my wishes not necessarily respected as they would be by my partner.

However, once I returned from Thailand as a post-operative transsexual female, the NSW Department of Births, Deaths and Marriages refused to correct my birth certificate to reflect my affirmed gender because I was married.

The Passport Office also is refusing to grant full rights to me as a female citizen, refusing me a full 10-year passport (although I have paid for one, and was granted an interim passport to travel for surgery) reflecting my post-operative status. They destroyed my temporary one right in front of me, but say I may only be granted a male passport to use for identification and travel despite the obvious discrepancy between the stated sex and my actual sex and appearance which is obviously female.

This clearly would result in scrutiny at every border I passed through and make me vulnerable to abuse by guards and other curious staff, and accusations of fraud, denial of entry to countries and it also renders using such a passport for proof of identification impossible. I am therefore denied the basic rights of correct identification, appropriate documentation and the ability to travel freely.

The reason for this situation stated by DFAT is that I have not had my birth certificate amended, but there is allowance in the legislation for those even without a birth certificate to get a passport. Further, I have certificates from my surgeon, my GP and my endocrinologist all attesting to that fact that I am in fact physically female, yet I am still refused correct official documentation reflecting this.

At this point there is still no remedy in sight.

I might point out that I am not able to simply divorce my partner to try to get my gender legally recognised. To divorce I understand we have to be separated for a year. I also would have to state that there has been an irretrievable breakdown in the marriage when in fact there was not, so to say there had been would be to bear false witness to a crown office.

My friends would also have to attest to the fact we had split up, which they would not, as there is not an intention to do so. So the issue is not quite as cut and dried as it may seem. It would be easier to crumble and do what the government offices are trying to force me to do, and seek a divorce, saying whatever was required to gain one, and then reapply to have my documentation amended, but there is no reason why our same-sex marriage should not be granted full legal recognition before the law, and also the full benefits of a heterosexual marriage be extended to my partner and myself. It is grossly unfair to force people in my position to choose between having a marriage or their gender recognised by the law, where anyone else would simply be granted both. This is especially evident when the rights of children and recognition as a family and the attendant rights granted by the marriage act, are concerned. All of this complex situation disadvantages me, my legal partner and whatever family we may have with regard to workplace benefits that are presently available to the average heterosexual couple.

Jack's situation

I was born female, and 11 years ago I embarked on a journey of self-discovery and began taking testosterone. I now have a beard and am developing male pattern baldness. People are surprised when I tell them I was born female, so obviously I do look male. However, I don't consider myself to be male or female - although I present as masculine.

I have never changed my birth certificate. It still says 'female' although by law I can change this to male. I haven't done so because it's important to me to maintain an accurate record of my past. I was born female, and do not wish to recreate history. This has many implications. I have had to produce a birth certificate at one workplace prior to being paid. This meant I had to disclose my past, and personal details to my supervisor. Fortunately this was in a workplace that was accepting of diversity; however, it disturbs me to know that this went on my employment record - I don't believe that I should have been placed in this situation.

I have never travelled overseas - should I wish to do so, my passport would define me as female, according to my birth certificate. Imagine the fuss at customs! In an ideal world I would like to be able to change my passport to reflect me as male, to represent the masculine way I feel and am in the world. Currently this is impossible without first changing my birth certificate.

I have a relationship with another person who also presents as male, and was born male. To the outside world, we appear to be a same-sex couple, but our relationship is much more complex than that and harder to define. It is unique and special to us, as all relationships are, and it defies simple definitions. We defy rigid stereotypes of sex, sexuality and gender. Legally, we are a male-female couple and so could get married if we chose. We have even considered doing so, to make a statement about the limitations of binary gender. Marriage is nothing more to me than a Judeo-Christian ritual, and I choose not to do it because they are not my beliefs and I don't wish to disrespect another religion's ritual. So de facto legislation needs to be able to accommodate people of all gender identities and all spiritual convictions. Legally recognising same-sex partnerships will not provide this although providing a legal recognition of two people who are in love will.

The definition of same-sex couple doesn't apply to us legally, although it does socially. If this consultation with the community is to be valid and truly representative, then it needs to accommodate sexual and gender diverse individuals and our complex relationships with significant others. If legislation is brought in to accommodate same-sex couples, then we will not be covered by it. If legislation talks about same-sex couples only, then my relationship is at risk of being even less recognised than it is currently.

If I died tomorrow, would my partner receive my superannuation benefits? We are not married, although we could be, and we would not be able to register as a same-sex couple under any new legislation. However, we have lived together for over 10 years and are committed to each other as partners. I would hate for my partner to have to defend our relationship at such a time, and in such a way.

Conclusion

The HREOC enquiry can see from the first and second submissions by SAGE that the discrimination situation for people who are sex, gender or sexuality diverse is extremely complex. The ways in which they can be discriminated against with regard to legal, work and social rights and benefits are profuse. This mainly arises through the use of reductionist language in the law that refers to men/women - males/females - heterosexual/homosexual; whereas many sex and gender diverse people do not fit into these bipolar paradigms. Such bipolarism uses what can be called "closed language" and when members of society do not fit into those narrow descriptions, then its allows them to be excluded from benefits because they cannot be sexed or named in a bipolar system.

Legal discrimination can and does happen against all people, partners and children, where one partner may be intersex, transsexual, transgendered, androgynous or neuter identified. HREOC's present enquiry that seeks to attain equal rights for people in same-sex relationships is too reductionist. Should it succeed in changing the law to include rights for same-sex couples, that will further damage the rights for sex and gender diverse people by further ghettoising them. While SAGE as an organisation supports the concept of gay equality, HREOC in pursuing this popularist cause to the exclusion of sex and gender diverse people rights will miss an opportunity to attain equality for all Australians regardless of sex or gender.

SAGE asks HEROC to support legislative recognition of relationships that are not dependent on the partners being of opposite sex or gender or of the same sex or gender. Support the full legal recognition of all chosen "ADULTS IN PRIMARY RELATIONSHIPS" whether they be opposite, same or other sexed or gendered.

Glossary

Sex and Gender Diverse - a collective descriptive term to describe people who do not present as stereotypically male or female.
Intersexed - a person who is not wholly physically male or female at birth.
Transsexual - a person who started life registered as one sex and has undergone medical procedures to live as another sex or gender.
Transgender - a person who may be one sex but may live as a different gender. This term is also used as an umbrella term to denote sex and gender diverse people.
Androgynous -who presents as a mixture of both male and female.
Neuter Identified - a person who identifies as being without sex or gender identity.

Bibliography

Gender Centre, Client Statistical Data, Sydney, July 2006.

O'Keefe, Tracie, Sex, Gender & Sexuality: 21st Century Transformations. Extraordinary People Press, London 1999.

Internet papers

SAGE's first submission to HREOC April 2006
http://www.sageaustralia.org/HREOC.htm

Sex & Gender Identity Guidance Document for Australian Government Employees
http://www.sageaustralia.org/documentssage.htm

SAGE's oral submission

The audio file of Grace Abrams' oral presentation on behalf of SAGE is now available on the HREOC website

http://www.humanrights.gov.au/samesex/SydneyForum20060726.html

and scroll down to number 6 personal story 2 (discrimination against transgender population)

SAGE's additional response to HREOC - to HREOC's Discussion Paper II (preliminary report)

October 2006

Prepared on behalf of SAGE by Dr Tracie O'Keefe DCH (Sexologist)

SAGE is responding to the publication of HREOC interim document setting out its progress in understanding discrimination issues in the workplace faced by non-stereotypical heterosexual people: National Inquiry into Discrimination Against People in Same-Sex Relationships: Financial and Work-Related Entitlements and Benefits, Discussion Paper II, September 2006.

http://www.humanrights.gov.au/samesex/discussion_paper2.html

Since the commencement of this inquiry SAGE has submitted two previous documents to HREOC: HREOC Needs to Widen Study into Inequality for Non-Stereotypical Sexed and Gendered People (O'Keefe 28.4.06) and SAGE's Second Submission to HREOC (Tracie O'Keefe DCH sexologist, individual and family therapist, Norrie May-Welby, Aids Council of New South Wales (ACON), Elizabeth Riley General Manager of the Gender Centre Sydney, Grace Abrams and Jack Powell) July O6. http://www.sageaustralia.org/HREOC.htm.

SAGE representatives also had a meeting with HREOC between Samantha Evans and Vanessa Leslie from the NSW HREOC, Tracie O'Keefe, Norrie May-Welby and Elizabeth Riley on 14.6.06. SAGE was asked to put in a further and second submission to the commission to help it understand the concerns of SAGE members.
Grace Abrams also presented SAGE's oral submission at a HREOC's meeting.

The audio file of Grace Abrams' oral presentation on behalf of SAGE is now available on the HREOC website:
http://www.humanrights.gov.au/samesex/SydneyForum20060726.html

It is evident from reading the second published discussion document by HREOC that much of what SAGE tried to explain to HEREOC about discrimination facing sex and gender diverse people has been ignored. The continuing political adherence to a binary "same sex" model by HREOC not only obfuscates the rights of sex and gender diverse people, it also further continues to ghettoise their basic human rights.

To replace laws that refer to the quality of a couple or family relationship from man and woman to "opposite sex" and "same sex" would not serve the needs of the sex and gender diverse community. Some of that community do not have a sex that can be clearly medically, psychologically, socially or legally defined so they would not be covered by such laws.

In the paper it politely refers to the needed change in the law pertaining to "two people living together as a couple". This is insufficient investigation for the possible sex and gender identities that people may adopt; which can be other than male, female, same-sex or opposite-sex. The research project clearly needs to embrace and explore the reality that sex is not always definable and that laws should reflect entitlements clearly on the quality of people's relationships and not on their sex or gender presentation.

In the discussion paper not addressing those issues it has failed in representing the needs of the sex and gender diverse community. SAGE is aware of the difficult times this inquiry has had in the present right-wing political climate and that the government of the day has purposefully stepped in to try and stop other government departments co-operating with this enquiry. SAGE is also aware that the inquiry is wielding the issue of gay and lesbian entitlements partly because of the present global sea change in many countries to change the law to give gay and lesbian people similar or the same rights as heterosexual people.

This second discussion paper, however, is scientifically flawed since it accepted communications from the sex and gender diverse community (represented by SAGE) yet it has not factored that information into its results. Scientifically a study must take note of all the information gathered during a study and not simply the information that would make a study's results acceptable or palatable to the most number of people.

Those who are sex and gender diverse include people who are not always covered by laws that are presently considered transgender laws. This is a community of people who are often unable to state their sex or gender because it may be mutable. It is rare that they get an opportunity to have the inequalities in law that face them addressed and it would be elitist of HREOC not to include them in this discourse.

In continuing with the inquiry/review/study HREOC needs to include within its discourse an acknowledgment that sex and gender diverse people exist. The law needs to change to include people of all sex and gender diversity not just gays, lesbians or bisexuals whose identity is pegged solely to a bipolar concept of male and female.

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