Ten years of ‘X’ passports, and no protection from discrimination

Important note: this paper should not be regarded as a guide to our current policy on identification documents. Our approaches have been informed by community-building and evidence-building, and are defined (as of March 2017) in the Darlington Statement. For information on data collection, see our page on forms and surveys.

Most people with intersex variations are simply men or women, with atypical sex characteristics. OII Australia acknowledges that people with intersex variations may be male, female, or identify with multiple or non-binary genders, just like other people. X passports are available not only to people with intersex variations, but also to transgender people.

As well as a travel document, a passport is one of the most important identity documents a person can hold. It’s important when opening a bank account, talking to a recruiter or employer, or renting or buying a property.

'X marks the spot' in the Western Australian newspaper, Perth 11 January 2003. Read at Bodies Like Ours‘X’ passports have now been available for just over 10 years. The West Australian newspaper reported in ‘X marks the spot for intersex Alex’ on the first ‘X’ passport on 11 January 2003:

A QUIET trailblazer from Perth’s Hills has become the first in Australia and probably the world to hold a passport aknowledging that not everyone is male or female. Alex MacFarlane, 48, is intersex and wanted a passport recognising it. Women have a 46XX chromosome mix and men 46XY. Alex is 47XXY…

The Department of Foreign Affairs and Trade initially baulked, saying its computers could deal only with an F or M in the sex field of passports. For Alex, choosing M or F would have been lying. “I should not have to commit fraud because of a department’s production inadequacies,” Alex said.

Late last year, after months of correspondence from Alex, and an inquiry from The West Australian, the department had a rethink, deciding to change its passport processing system to allow an X in the sex field. The X signifies unspecified sex or intersex and is the only other sex category allowed under International Civil Aviation Organisation guidelines for machine-readable passports.

A spokeswoman told The West Australian that, after reviewing the issue, the department had decided to accommodate people whose birth certificates recorded their sex as indeterminate. Alex has since received the passport, with an X in the sex field.

Ingrid Holme, writing in the journal Science as Culture (Volume 17, Issue 3, 2008), confirms this. Additionally, government policy between 2003 and 2011 was documented in a 2009 Australian Human Rights Commission paper, Sex Files primarily exploring documentation for trans people, not intersex people. It notes government policy to issue passports with an ‘X’ marker only to people on request when they can “present a birth certificate that notes their sex as indeterminate“, that is, people born intersex.

Alex was born in Victoria, which allows people with intersex variations to opt for the recording of “indeterminate” sex on birth certificates if they choose, as a result of campaigning also by Alex MacFarlane. Cllr Tony Briffa is also the recipient of a birth certificate that does not record a binary sex (Tony’s preferred option, however, is to record both binary sexes).

Close up photo of an Australian passport showing an X in the Sex designation field.

In 2011, the Department of Foreign Affairs & Trade (DFAT) revised the policy to allow more people to obtain an ‘X’ passport, including non-binary trans folk as well as non-binary intersex folk, on the basis of a simple letter signed by a medical doctor. A board member of OII Australia noted this in a submission to the Senate Inquiry on the Human Rights and Anti-Discrimination Bill, Exposure Draft. The submission, #579, reads:

In my life, the most difficult and, indeed, damaging experiences that I’ve had have been where people have incorrectly judged me on the basis of my legal gender or my presentation. When the current government broadened the eligibility for a passport with an ‘X’ sex descriptor, I took the option…

I have plenty of medical documentation showing my status, and my GP (who stood with me through diagnosis and who I’m immensely grateful for) was obliging in providing me the summary statement needed to obtain an ‘X’ passport.

The Passport Office states:

“this initiative is in line with the Australian Government’s commitment to remove discrimination on the grounds of sexual orientation or sex and gender identity” – Australian Passport Office, https://www.passports.gov.au/web/sexgenderapplicants.aspx

It is therefore hugely disappointing to me that the current proposals in the Human Rights and Anti-Discrimination Bill, Exposure Draft, explicitly reject protection for people, like me, who are intersex and who do not fully or “on a genuine basis” identify as one or other sex.

This is inconsistent with the recognition given to me by the Commonwealth. I don’t personally regard my passport as marking me as a member of a third sex or gender. I’m uncomfortable with that notion. Rather, I see it as an opt out of a system of belief that I can’t live up to.

This is also inconsistent with the bill’s intention to otherwise protect people who are perceived to have a protected attribute, or who associate with people who possess such attributes.

For the first time in my life, I can understand what trans people go through when they change their documentation. Obtaining an X passport is very different in many ways – I haven’t changed my appearance or name. I use the same (male) toilet as before. My need for testosterone hasn’t changed and, in fact, I needn’t have gone through any of the surgical experiences I have had to be able to qualify for the passport.

Nevertheless, the passport presents some challenges…

We remind readers that most intersex people identify as male or female and are not affected by the exclusion in the proposed legislation. The explicit lack of inclusion of people who do not identify as male or female affects some people born intersex, and it also affects some trans people. Current proposals do not recognise the congenital, biological nature of intersex, and do not satisfactorily protect intersex people. It would mean that, if/when people like Alex and this OII Australia member are directly discriminated against, we have no legal recourse. The current proposals do not live up to the government’s stated intent of removing discrimination.

This is an issue that we will be raising with the Senate Inquiry during oral hearings in Sydney on Thursday 24 January.

Update: inclusive legislation is now law

On 25 June, Parliament passed the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013 without a vote. The Act, which includes new protected attributes of “intersex status” for intersex people, and “gender identity” for trans people, became law on 1 August. The “intersex status” ground is a biological attribute, making identity irrelevant. The “gender identity” attribute also protects trans people with non-binary identities. It does, however, contain an exemption in record keeping. Federal guidelines on sex and gender recognition provide for the rollout of an ‘X’ classification across federal departments and agencies.

More information