On Australia’s intersex & trans* inclusive passport policy, & why it’ s a great development.

Originally in The Bioethics Forum online

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X Marks Evolution: The Benefits of the “Indeterminate Sex” Passport Designator
Hida Viloria, 12/07/2011

Australia passed legislation in September giving transgender and intersex passport holders the option to identify themselves with an X for “indeterminate sex.” Navi Pillay, the United Nation’s high commissioner for human rights, called it “a victory for human rights.” Although other nations have enacted alternative sex legislations, Australia’s is the first that impacts international policy.

Trans activist Norrie May Welby, the first recipient of an X under the new policy, has elucidated the benefits of an indeterminate sex designator:

“I may be detained when traveling if . . . my physically noticeable masculine aspects . . . are noticed,” Welby wrote in a blog post last year. “If the passport states male, again there is a dissonance with my physical form, castration having had a feminising effect. . . . Stating my sex as male or as female makes the statement false, which is not acceptable for legal identity documentation, and puts me in danger of detention and assault.”

This risk of danger and discrimination is why Australia’s Minister of Foreign Affairs, Kevin Rudd, approached Gina Wilson, the president of Organisation Intersex International (OII) Australia, and trans activists Martine Delaney, Sally Goldner, Aram Hosie, and Peter Hyndal regarding the legislation. “While it’s expected this change will only affect a handful of Australians,” Rudd said in an e-mail interview, “it’s an important step in removing discrimination for sex and gender-diverse people.”

However, every human rights movement has had its detractors. During the women’s suffrage movement, for example, critics used the fact that not all women wanted to vote as a reason to oppose it. Harold Baker even cited statistics in his opposition to granting British women the vote: “there are against the Suffrage 42, 793, in favour of it there are 22,176, neutral 9,404. That is the opinion of women. This is a man-made Bill which they are forcing upon the vast majority of women against their wishes.”

Recently, Alice Dreger, a medical historian at Northwestern University, used similar reasoning to criticize Australia’s legislation. “The new Australian system doesn’t actually recognize the reality of the vast majority of intersex people, who are either X/M (men with intersex) or X/F (women with intersex),” she wrote in Bioethics Forum. She misses the fact that in societies plagued by prejudice, civil rights proponents will always be the minority because it’s difficult for those in marginalized positions to speak up.

In addition, the central critique of her policy, that “transgendered people, in contrast to intersex people, must be labeled either ‘M’ or ‘F’,” is factually incorrect: the X is available to both transgender and intersex applicants. She further speculates that, “I really don’t think we’re helping anybody by marking people born with sex anomalies as ‘X’ men, grand as we might be imagining their superpowers to be.”

Her implication that something is being forced upon the majority is erroneous. “The policy is drafted for those who want it,” states a blog post by OII Australia in response to the Bioethics Forum commentary. “Intersex people are under no compulsion to declare their intersex or to opt for X as a sex designator. It is a matter of free choice, for us, something we are rarely allowed when it comes to our sex, gender or our body parts.”

Just as not all women wanted the right to vote, not all transgender and intersex people will want an X. But why should their point of view deprive the rest of us of the right to a label that we feel more accurately describes us?

In fact, not being legally recognized is one of the greatest hurdles we face in attaining civil rights. For example, in 2000, Curtis Hinkle, an intersex American, filed a harassment complaint with the Equal Employment Opportunity Commission when information from his medical records was leaked. The commission told him that he had no protection under the Sex Discrimination Act against sexual harassment or discrimination because only males and females were protected, which led him to found OII in 2003.

The use of the X was strategic. As OII Australia explains on its Web site, X has been available since 1945 to help international organizations such as the Red Cross resettle refugees and concentration camp survivors of World War II who had no identifying documents or whose documents had been destroyed during the war. “X was made an allowable designator in view of the difficulties resettlement aid workers had with unfamiliar names and the sex usually associated with them,” OII states. “We are legally able to take advantage of this facility despite the originators not having quite the same objectives in mind as we do.”

In 2003, an intersex Australian resident revived the X when he fought for the right to it as a sex designation through Australia’s Administrative Appeals Tribunal. However, few people were able to obtain an X under the former Australian legislation. This is because applicants had to have had sex “not specified” noted on their birth certificate. There was only one Australian state that allowed this, and then only for people whose intersex variation was referenced at birth – something that few doctors do.

The new X policy requires applicants to provide a doctor’s letter, a provision OII Australia lobbied against. “Unfortunately, they kept coming up with the term ‘disorders of sex development,’ which made them conclude that medical involvement was necessary,” Wilson said in an interview.

The term was adopted as a result of a medical conference in 2005 where a paper urged doctors to use it to replace our former labels. By 2006, it had spread throughout the global medical community, despite controversy. Many, including all of OII’s members, oppose the label because it is pathologizing and implies a condition in need of repair, although intersex variations do not, in the majority of cases, pose health risks that require medical treatment.

“I . . . urge other states around the world to review their own laws, policies and practices to ensure that discrimination against transgender and intersex individuals is addressed in a systematic and effective way,” said Pillay, of the U.N., in an interview with the Sydney Morning Herald.
The U.K. is considering abolishing all sex designators for passport holders. “The U.K. Government is totally committed to creating a society that is fair to everyone,” said Lynn Featherstone, a minister in the Home Office.

We shall soon see whether the U.S. shares this commitment. Morgan, a member of OII Australia and the second recipient of the X under the new policy (who did not want his last name published), has contacted the U.S. State Department to request a visa with his X because the online application forms list only M or F. He is awaiting a response.
Hida Viloria is chairperson of the Organisation Intersex International (OII), the world’s largest intersex organization. She writes and lectures extensively on intersex issues. Her Web site is www.hidaviloria.com.


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