First off, profound apologies are due to the Minister for Foreign Affairs and Trade, Alexander Downer. He is not responsible for the horrendous mucking around and obstruction and sheer bastardy that Zoe Brain has had to endure from the Australian Passport Office. I'm glad I was wrong.
It appears that the main culprit is the Acting Director of the APO, Bob Nash. He is guilty of everything nasty that I suspected Downer of and worse. Some other high ups in the APO might be involved as well but I don't know yet. At most it looks like a few scumbags at the top. The case officer and the counter staff have all done the right thing in difficult circumstances.
Zoe has put up a summary of what has happened on her blog.
Briefly the Australian Passport Office has been looking for ways to prevent Zoe from obtaining an Australian Passport rather than looking for ways around unintended and unanticipated effects of regulations. The regulations were designed to handle more normal cases of transsexuality. Her case is unusual in two major ways.
One is the gender change was not being due to surgery. Although she is on hormone treatment now most of the changes have been spontaneous. This is an extremely rare condition. We can only guess about the cause. It's probably a rare combination of factors.
The other is her marriage surviving this ordeal. Marriage has several functions. Not everyone will place a high importance on all of them and a marriage can still be important and valuable if some of them are absent or handled another way.
One of its traditional functions was to provide a situation in which sexual activity was socially condoned. There have been religious prohibitions on sexual activity other than heterosexual activity within a marriage.
Another function is do act as a public affirmation of commitment by the partners. Another is to act a financial and social partnership.
And of course it is supposed to act as a framework for bringing up children.
One does not necessarily dissolve an existing marriage if the sexual side of it disappears but the other aspects are still functional. Especially if there are children involved.
Zoe and Carmel intend to stay together to raise Andrew. And while the sexual side of their relationship is now no longer functional the rest is. Their marriage still means something to them and they wish to preserve it despite the changes it has been through.
The legal situation is clear. The people contracting a marriage have to be of different genders at the time of the wedding. A subsequent change of gender is irrelevant
But there are people trying to make a point about their opposition to homosexual marriage. To make their point they are freaking out about any same sex marriage even such an unusual one as this. This appears to be what is behind the actions of the APO. We had the Acting Director of the APO saying “Under the Marriage Act, we can't have married people changing their gender”. What business is it of his? How dare he try to break up a marriage? His job is to administer the Passports Act. Not to use his office to enforce his idea of what marriage should be. He is supposed to help people get passports not look for ways to stop them from obtaining passports.
The APO have deliberately violated the intent of the Law and ended up violating its letter as well. They have asked for irrelevant and intrusive documentation on the pretext of proof of identity. When asked to give reasons for their action they missed the legally required deadline. Their reply was evasive and did not answer the questions. In short they have shown a complete lack of good faith.
Fortunately Zoe was able to work around them. The Department of Immigration and Multicultural Affairs was much more helpful. They were appalled by the APO's treatment of Zoe. They did the unusual step of issuing a visa on Zoe's UK Passport. In other words they exploited rarely used technicalities to help an Australian citizen.
Zoe should never have been put through this ordeal. The Head of the APO at least has shown his complete unfitness for his office. They must be prevented from doing this to anyone else. Their next victim might not survive.
I have written the following letter to the Foreign Minister.
The Hon Alexander MP
Minister for Foreign Affairs and Trade
Mr. Lloyd Kilworth Flack
18th September 2006
Re: Passport application by Zoe Ellen Brain and actions of the Australian Passport Office
Dear Mr Downer,
I am writing to complain about the reprehensible treatment of a friend of mine by certain staff members of the Australian Passport Office. Some staff members including the Acting Director Bob Nash are trying to make it difficult or impossible for her to obtain a usable Australian Passport.
They appear to be doing so because of bigotry against transsexuals. They have intentionally violated the spirit of the Law. In their presumption and arrogance they have carelessly ran the risk of violating the letter of the Law and have ended up doing so.
Alan Brain has been a friend for over thirty years. About sixteen months ago I heard from him that he was undergoing a spontaneous sex change. We can still only speculate about the cause. Whatever it was it is extremely rare. This aggravated a repressed sexual dysphoria. I knew Alan very well for a long time. If he claimed that there was a mismatch between the gender of his brain and that of his body then I have no doubt that the claim was correct. He was not the type of person that would imagine such a thing.
Alan is now Zoe and much more comfortable as a woman than she ever was as a man. From what I now know it is obvious that there always was a degree of intersex. She is now living as a woman and recognized as such by Medicare. Her Citizenship Certificate has been changed to reflect the reality of her current gender. She is now receiving hormone treatments to regularize her status and will require gender affirmation surgery for this purpose and to minimize the risk of cancer. Her appearance now is female and she would have difficulty passing as a male.
Her marriage has survived these events and she and her partner Carmel are determined to stay together to bring up their son Andrew now five years old.
To have this surgery she will have to travel overseas as the required surgery for her particular case is not available in Australia. She will also have to travel overseas for conferences related to the PhD that she is currently working towards. To do so she requires and is entitled to a usable Australian passport. That would be either a female passport or one with an indeterminate gender. Since a male passport would be at variance with her appearance it would be embarrassing, inconvenient and in some circumstances actually dangerous.
As an Australian citizen she is entitled to an Australian passport if the required forms are filled in, fees paid and proof of identity and citizenship given. There are exceptions related to crimes and security and so on but they do not apply in this case. As someone who has undergone a gender change other than as a result of an operation and whose marriage has survived this harrowing ordeal she does not fit into the normal categories that the regulations are based around.
In a case such as hers the Australian Passport Office should be seeking ways they can give her a passport without breaking the regulations rather than seeking reasons to deny her a passport. If they could not do so they should have referred the case to you so you could make a Ministerial Determination to cover these exceptional circumstances.
They have not done so. They have been deliberately obstructive.
Much more proof of identity and citizenship was given than your website asks for. There cannot be an reasonable actual doubt about her citizenship and identity. They have asked for things such as proof of surgery when the sex change was a result of a medical condition rather than surgery. They have sought private and superfluous medical information. This a gratuitous invasion of privacy.
The rejection was made by Policy Section and was done so immediately and continued despite all additional information that they were given. They claimed that she had not provided sufficient documentation to prove her identity and citizenship. This claim is preposterous since far more documentary evidence than is usually asked for was given.
A demand was made for the reasons for the decision. The Department was given 28 days to reply in writing as was required by law. They did not do so within the required time. The reply did not answer the questions asked and could only be regarded as an evasion. The excuse for the delay was the absence of necessary personnel. The deadline given made plenty of allowance for this possibility. When I consider the rest of the APO's actions the only conclusion that I can come to is that they deliberately tried to reply as close to the deadline as possible and unanticipated absences then led to them missing the deadline. In other words they deliberately violated the spirit of the Law and as a result violated its letter as well.
The Acting Director of the APO Bob Nash has claimed that in order to gain a female passport Zoe would have to divorce Carmel. According to written advice from the Attorney General, the Hon Phillip Ruddock a change of gender does not invalidate an existing marriage, that only the genders at the time of the marriage are relevant. Mr. Nash has ignored this advice, which was in his possession. Asking someone to divorce because it is administratively easier or because it fits in with one's ideology is an obscene and insolent act. It is gross abuse of power.
I do not know which other APO staff are behind this fiasco. It appears to be only a few individuals high up in the department. The case officer involved and the counter staff acted with courtesy, propriety, decency and efficiency in a difficult situation.
Mr. Downer I request that you promptly make a Ministerial Determination overriding Mr. Nash's decision and grant Zoe the Passport to which she is entitled as an Australian citizen. I request that an apology be issued and reasonable compensation for inconvenience and suffering be paid. I request that procedures be modified to reduce the risk of something like this happening in future. At present the Australian Passport Determination 2005 Explanatory Notes allow the APO to treat transsexuals as if they were criminals.
Further I request that Bob Nash be removed from his office and placed somewhere where he can do no further harm. And that the same be done to anyone else involved in deliberately making things difficult for Zoe. Usually I find stuff-ups more believable than malice. In this case only malice fits. (Rather like the Lebanese ambulance case. Normally I would prefer collateral damage as an explanation, but only a hoax fits.) Anyone with with an adequate supply of common decency would have tried to help, to find a way to give Zoe her passport. The opposite happened. Their job is to serve the Australian public, not to use their office to pursue private agendas and prejudices.
If they claim that they believed that what they were doing was right I will only be angered more. Self-righteousness is one of my pet hates. By self-righteousness I mean trying to feel or appear virtuous and avoiding looking at the cost to others of doing so. It adds insult to injury. In this case it appears to have a solid foundation of moral cowardice.
This is not a case of political correctness. This is a case of Right Wing Death Beasts seeking retribution for a wrong against one of their own. Deliver the heads on pikes or on platters, doesn't matter.
Lloyd Kilworth Flack MStats BSc
I urge others to write letters of complaint to the Minister. I want the culprits put where they can do no further harm. In a couple of places I suggested that they be sent to count parasites on penguins in Antarctica. If he receives enough complaints he might look at this seriously.