I who may well be...

Musings from the perspective of a human being who may well be not locatable completely within the usual categories of male or female or gay or straight or transsexual or intersexed or exploiter or exploited or supplier or consumer or performer or spectator.

Saturday, August 28, 2010

confessions of an appellant

When I was in court last week, i didn't need my reading glasses, even for the tiny print in the wads of previous legal judgements the Crown Solicitor sprang on me without warning. I was like an owl looking for a mouse in a field at night, when its chicks will starve if it can't find the mouse, that mouse was toast :)

My favourite challenge was to a judge's statement that the "assumption" of the law is to establish whether people are male or female, an assumption the Respondent had to admit had no other basis in law other than it being said by a judge, and the judgment that 'Most people are male or female", which strongly implies and certainly allows that not all are.

Anyway, for a fleeting moment I wondered if I could be a lawyer, but I really only have these amazing skills when the matter animates my whole being, when it's so crucial and important to everything I believe in and am connected to and am part of...

I don't know which side the Crown Solicitor is really on, as their case studies support my case, revealing for example a person found to be not male, but not established as female, thus proving a non-specified sex to be a legal fact, not an inconceivable possibility, and their argument seems to be that the law acknowledges there are "people of indeterminate sex", and "surgery to correct or eliminate ambiguity", but that changing or registering sex is only ever to establish a person as having a legal status of male or female, with no other options allowed in law, although apparently recognisable by the law in reality, but not in any actual individual's legal documention, for fear of the consequences for a society with so much legislated sexism.

Yes, it's out there, they were the first to talk consequences, so I admitted there could be challenges, but insisted it was the job of the law in this case to establish the truth, no matter if that makes life more interesting or not for some parties.

By my side was Tracie O'Keefe, also picking up pertinent points and challenging a fictional binary that medical science has destroyed. Tracie actually is English, but I picked up the accent in elocution lessons when I was a child,  and there were moment when I thought we sounded like a pair of court scene Quentin Crisps.

Anyway, the troops are rallying, one of the architects of the Transgender and Other Amendments Act of 1996 turned up as we came out of court, and they are now researching the Hansard to show the inclusive intention of parliament when it passed the relevant laws, and we have an appointment with a barrister who had been caught up as a candidate in the election that's finally over on Saturday, won't that be good?

There may not be another court date, it all depends on what the Tribunal makes of the written legal submissions each side now makes with regard to the intent of the meaning of sex in the legislation, does it only mean male or female, is non-specific an acceptable status of sex, can there be no other status of sex than "male" or "female" (on a planet where most sexually reproducing lifeforms are hermaphrodites), and when is a neuter not a neuter?

Laters ;)

submission to Administrative Decision Tribunal 18 August 2010, Norrie V Registrar Births Deaths and Marriages

These are the notes I made for an oral submission to the court, but somehow that's not how the Tribunal does things, and they silently read my notes instead. (the matter has been held over for further written submissions from each party, due in six weeks)
  1. How I come to be here is a little confusing, as the Respondent has already complied with my wishes, and extensively documented how they made those changes, and I am left with no real understanding of why they have been persuaded to insist their every move before the case went public was not just a mistake but indeed a series of consecutive failures to properly administer the law by not one but at least three senior people working in the department of law and justice (ie the Births Deaths and Marriages Registrar, the Manager of Amendments Section of Births, Deaths and Marriages, and the Policy Advisor from the Attorney General's department.) I thank the Respondent for making the right decision in the first place, and for the evidence they have provided for my case in their submissions.
  2. The Respondent's first submission dated 29 April, tab 16, shows the proper steps taken to issue my certificate. STEP THRU THE PROCESS DOCUMENTED BY THE RESPONDENT
  3. As the Respondent points out, sex according to the Oxford English Dictionary is not just male or female but may also be a third option, or third sex,  consisting of (a) eunuchs and transsexuals, to quote the pertinent clause. There is an attempt in the submission made on behalf of the Respondent (2 July 2010, paragraph 40) to present this as a straw man argument, in claiming that the source is a historical dictionary, however, "transsexual" is a current term, coined in 1947, hardly Shakespearean but modern times, and indeed in modern use, as is the concept of "third sex", or a third alternative to the more common two categories of sexes, still part of modern language and understanding, as it was when the Transgender laws of 1996 were passed. 
  4. The Act talks about intersex people, directly and unambiguously implying an understanding that people can be, and can be legally recognised to be, other than strictly male or female.
  5. Further, the Act talks about "correcting or eliminating ambiguities", directly and unambiguously implying that  there is a space between correcting and eliminating ambiguities, allowing for a person to be other than 100% male or 100% female. And indeed, this is the part of the Act that applies to me, for I had surgery to correct or eliminate any ambiguity about my sex being, in the framework of male or female, non specific, that is, in the terms agreed to by the Australian Human Rights Commission, and by the Respondent, prior to the change of opinion generated by the Crown Solicitor's Office now representing them, sex not specified.
  6. The legislation in section 32A confirms that a sex affirmation procedure includes not only changing a persons sex from one gender to another, but importantly also correcting or eliminating ambiguities relating to the sex of the person.  This second element of the definition of sex affirmation procedure is relevant to my case in that the statutory declarations of Doctors Kearley and Schultheiss evidence that as a result of my sex affirmation procedure I am unambiguously not male or female, but rather have a sex status that has been affirmatively described as "non specific."
  7. The form issued by the Respondent for medical certification in this matter has the phrase "male" stroke "female" in brackets as a guide for completing doctors, but of course this is not proscriptive, in giving the usual options, and the form does not ask the doctor to cross out or circle one of only two possible options, but gives open space for the doctor to certify what sex the subject is, perhaps with reference to the normal sex categories, and in accordance with the form and the Act and the regulations, my doctors certified the truth of my sex in this part of the form as "Non-Specific", which is, in terms of male or female, what I am. It is absurd to insist, as the Respondent does in their submission, that because a form gives a suggestion, this suggestion is proscriptive. The Respondent took a much more reasonable view of this in the time before the Crown Solicitor's Office suddenly decided it had all been a horrible mistake after it hit the front page.
  8. It is a plain and straightforward matter: I have been neutered, I am neuter. This is not Spanish, this is not a new post-modern language or some ancient historical curiosity, this is the plain English reality of my sex. Neuter, not one or the other, to use the root meaning of the word, in Middle German, "ne itter" that is, Not Other, or Not Either. Non-Specific, to use the phrase used by the doctors in certifying the sex I am as a result of the surgery that, in neutering me, eliminated any ambiguity about my sex being neuter. "Not Specified", to use the phrase agreed to by the Respondent before they arranged to change their entire computer system to accommodate the acknowledged reality of a third sex option. The Respondent's entire case at this point seems to be the insistence by repetition that the only acceptable answers to the question of what sex a person can be are "male", or "female", and no other answers are permissible, although they sang an entirely different song before they issued the certification. Against this is the simple fact of my sex being non-specific, as you may plainly see, and as certified by the doctors, and indeed, after much consideration and consultation, by the Respondent, prior to their change of heart after what the Attorney General described to parliament as "media ventilation". 
  9. Three sex categories have been recognised by the International Civil Aviation Organization since 1947, M for Male, F for Female, and < for Unspecified
  10. It is an accepted principle of law, as i understand it, that that which is not prohibited is permissible. There is no prohibition against ambiguity of sex in the Act, and indeed it explicitly recognises the possibilities of there being ambiguities, and of having those ambiguities corrected or eliminated. That the form produced under the regulations of the act has a suggested framework of firstly indicating that a person has had surgery to correct or eliminate ambiguity, and then separately stating what the new sex is, allows for a variety of results. In my case, I had surgery to correct or eliminate any ambiguity about me being androgynous, and as a result, my actual sex is not specific, that is, in the framework of male or female, it is not specifically either. Before the surgery the reality was that I was intersex, but perceived as biologically male, and to correct this, I had my testes removed, and I am now, therefor, by definition, and by self identification, and by how I am seen in my community, a eunuch. Neuter, androgynous, eunuch, third sex, non specific sex, there are indeed, contrary to the Respondent's submission, many ways in modern current English to conceive of people who are not strictly male or female. The phrase recommended by the Australian Human Rights Commission in the Sex Files Report (previously tendered in evidence) is “Sex not specified”, and the Respondent initially dealt with my request in line with the recommendations of this report. I note the Respondent was represented at the launch of the Sex Files Report, as noted in the Australian Human Rights Commission Annual Report previously tendered in evidence. They clearly took the recommendations made in that report as to how to accommodate people like me that are "sex not specified" in accepting my request, correcting their computer system, and issuing my certification. 
  11. The case was dealt with in a plain and straightforward manner to start with, and proceeded in a plain accountable way through the verification of my details with the doctors, the consultation with the Policy Advisor verifying that my application complied with the Act, the approval of my application by both the Manager of Amendments and the Births, Deaths and Marriages Registrar, and the department wide change to the computer system to accommodate this third sex status. There is no lawful cause preventing the recognition of my sex as "Not Specified", and every reason to uphold the original decisions to issue my certification as requested, and to reject the Respondent's post-publicity assertion that, in a Act that deals with changes of sex and with intersex people and with "correcting or eliminating ambiguities",  my sex cannot possibly be other than male or female. Well it is, doctors have certified such, the Respondent has recognised such, and, it is the reality.
  12. By not acknowledging my status as ‘Sex Not Specified’, as attested by the doctors, the Respondent is soliciting me to act in a fraudulent manner in my everyday dealings by encouraging me to mislead people about my sex status. The Respondent cannot reject the medical evidence. They say they do not know what sex I am but they have the medical evidence which they accepted. To paraphrase the judgment handed down in the case of In Re Kevin ( documented at http://www.austlii.edu.au/au/cases/cth/family_ct/2003/94.htmls) , a federal case that illustrates how legal identification of sex is done where one's adult sex may be at variance with what's documented at birth, 
12.  (a) I have always perceived myself to be of non specific sex;
      (b) I have long been perceived by those who knew me to be of non specific sex;
      (c) I have had a full process of sex re-assignment, involving removal of sex-hormone producing organs and irreversible surgery, conducted by qualified medical practitioners;
(d) In appearance, characteristics and behaviour, I am perceived as androgynous, that is, as a person of non-specific sex, by my family, friends and work colleagues; 
(e) I have been accepted as a person of non-specific sex for a variety of social and legal purposes, including my drivers license, issued by the state authority, my bank, St George, and Centrelink, a federal department.
This is the reality of my ordinary everyday life.
14) This case is not about the right to choose. It is about a medical reality and the right to have documents that reflect that medical reality.
15) The law allows for the recognition of my legal identity with my sex status stated as "Not Specified", as the Respondent initially, and after careful consideration and much process, agreed in the certification they issued, and I urge you to uphold that recognition and certification. Thank you.