Changing the BDMRRA so it is fair for everyone, based on the existing passports policy

Introduction

This statement was drafted by takatāpui, trans and non-binary people and organisations in Aotearoa New Zealand. It explains why it is so important that the Births, Deaths, Marriages and Relationships Registration Act (BDMRRA) 1995 is amended, to bring the process for changing gender markers on birth certificates in line with the existing administrative process used for passports and driver licence records. This proposed change would require takatāpui, trans and non-binary people to sign a legally binding statutory declaration stating their self-defined gender.

Impacts of current provisions

The current BDMRRA provisions require medical evidence and a Family Court process. This impacts most heavily on those who:

  • do not undertake medical steps as part of their transition (for financial, medical, religious, or other reasons)
  • do not know how to make a formal legal application to the Family Court and/or
  • cannot afford to pay a lawyer to apply on their behalf.

This means that the current process privileges those who are well-off, and those with sufficient formal education and English language skills to make such a Family Court application. It excludes those who are poor or on low-incomes, including a higher proportion of Māori and Pasifika members of our communities.

The current process to amend a birth certificate can be lengthy, particularly for those takatāpui, trans and non-binary people waiting for medical evidence to be supplied from a GP, hormone specialist or surgeon. For someone using a lawyer to make the application it is expensive, as a lawyer’s fees can be up to $3,000. The costs of obtaining medical evidence fall on takatāpui, trans or non-binary people themselves, or on parents making applications for their children under section 29 of the BDMRRA. The medical evidence requirements under section 29 are particularly onerous, also encompassing medical treatment that a takatāpui, trans or non-binary child has not yet undergone and which the court may determine is necessary for the child to maintain their gender identity.

The Family Court process, and the medical evidence it requires, prevents or deters many takatāpui, trans or non-binary people in New Zealand from amending their birth certificate. This means it is common for a takatāpui, trans or non-binary person to have a birth certificate that does not match the details on their passport, driver licence record, or other official documents, including school enrolment records. It is difficult for people to navigate everyday life with safety, dignity and privacy, when different identity documents do not match. There is extensive empirical research overseas highlighting that trans and non-binary people are denied services, harassed, or attacked, and have worse mental health outcomes, when their identity documents do not match their gender identity.

It is only fair that that every takatāpui, trans or non-binary person born in Aotearoa should be able to change the gender marker on their birth certificate, through an accessible process. A birth certificate is the only document that someone born here can never have taken away from them. In some significant life events, it is the sole document that will be accepted as proof of identity. For example, the gender marker on a takatāpui, trans or non-binary person’s birth certificate is used on their marriage or civil union certificate, on their child’s birth certificate, and on their death certificate.

New Zealand’s policy for amending gender markers on passports, introduced in December 2012, is often cited as one of the best in the world. In contrast, the BDMRRA provisions for amending gender markers on birth certificates, developed 23 years ago, are outdated. They have not kept pace with international human rights standards, that set out each person’s right to a legal recognition, regardless of age. The BDMRRA provisions do not meet the requirements set out in international case law or recommendations by United Nations bodies that monitor treaties that New Zealand has ratified.

Benefits of amending the BDMRRA

The current review of the BDMRRA is a timely opportunity to update sections 28 (covering adults) and 29 (covering those under the age of 18) so that there is “a quick, transparent, and accessible mechanism that legally recognises and affirms each person’s self-defined gender identity”, with no further eligibility criteria required. This would ensure trans and non-binary people have the same right to legal recognition, and the legal protection that provides, as all other people in New Zealand.

This is a chance to update the BDMRRA to reflect how the New Zealand government already deals with requests from takatāpui, trans and non-binary people to change gender markers on passports and driver licence records. The necessary amendments would:

  • replace a Family Court application with a statutory declaration process that enables takatāpui, trans or non-binary people to affirm their self-defined gender identity
  • remove any other eligibility requirements, such as the need for medical evidence and
  • enable gender markers to be recognised as male, female, or as a third, non-binary gender.

In addition, those aged 16 and 17 should not require parent consent to amend the gender marker on their birth certificate. This reflects that 16 is the threshold for consent, or refusal to consent, to medical treatment in New Zealand.

Moving from a Family Court process to a statutory declaration will reduce cost barriers for takatāpui, trans and non-binary people, including their whānau; free up the court’s time; and reduce the administrative burden on the health professionals who are asked to supply medical evidence for each application.

These changes will have very little impact on the non-transgender community, as a passport can be used as proof of identity in most circumstances. They will have a very significant impact on the takatāpui, trans and non-binary people in those instances where a birth certificate must be shown.

By updating the BDMRRA in this way, New Zealand can make it possible for all takatāpui, trans and non-binary people to be able to afford to amend their birth certificate. This would demonstrate New Zealand’s commitment to international human rights standards and would make an important practical difference for takatāpui, trans and non-binary people’s daily lives.

A statutory declaration model could also be used to enable trans and non-binary people who are seeking asylum, or in New Zealand on temporary visas, to verify their self-defined gender identity and name, when it is impossible for those details to be amended on their original birth certificate or passport.

This statement is endorsed by the following groups and individuals:

Ahi Wi-Hongi, national coordinator, Gender Minorities Aotearoa

Abbi Pritchard Jones, group administrator and facilitator, Genderbridge NZ

Tracee Nelley, President, Agender NZ

Phylesha Brown-Acton, Managing Director, F’INE

Soul Mehlhopt, Co-ordinator, Transcend, Manawatū

Michelle Smeaton, Secretary, Tranzaction, Christchurch

Dr Jaimie Veale, Senior Lecturer, School of Psychology, University of Waikato / Te Whare Wānanga o Waikato

Tom Hamilton, Counsellor, OUTLine NZ and project collaborator, re.frame

Jack Byrne, Research Officer, Aotearoa New Zealand Trans and Non-binary Health Survey

Sharyn Forsyth, Co-ordinator, NZ Parents and Caregivers of Transgender and Gender Diverse Children

Nick Winchester, Mentor / Founder, Kindred, Christchurch

Elizabeth Kerekere and Kevin Haunui, Chair and Deputy Chair, Tīwhanawhana Trust

Duncan Matthews, Manager, OutLine NZ Inc.

Frances Arns, Chief Executive, RainbowYOUTH

Tabby Besley, National Co-ordinator, InsideOUT

Jem Traylen, Trans Secretariat/Board Member, Rainbow Wellington

Jevon Wright, Treasurer, OuterSpaces Charitable Trust, Wellington

Amanda Ashley, Founder, Rodney Area Rainbow LGBTQ+

Warren Lindberg, Chief Executive Officer, Public Health Association of New Zealand

George Parker, Strategic Advisor, Women’s Health Action

Conor Twyford, Chief Executive / Kaiwhakahaere, Wellington Sexual Abuse HELP

Richard Tankersley, the Uprising Trust, Christchurch and former Human Rights Commissioner

Rosslyn Noonan, former Chief Human Rights Commissioner

Dame Margaret Sparrow

Dame Catherine Healy, National Coordinator, New Zealand Prostitutes’ Collective

Professor Elizabeth McDonald MNZM, School of Law, University of Canterbury

Sally Dellow

Allyson Hamblett

Claudia Mckay

Cathy Parker

Lynda Whitehead

Ally Wilson

Aych McArdle

Joey Macdonald

Griffin Nichol Madill

Laura O’Connell Rapira

JOINT STATEMENT PDF: Changing the BDMRRA so it is fair for everyone

Media release online version