The report on the inquiry into Supplementary Order 59 on the Births Deaths and Marriages bill (“the SOP”) has been released, and will go to the Committee of the Whole House and for its third reading this week (6-10 December 2021).
The report covers recommendations that have implications for both the Act itself and the regulations that bind the Act. The difference between the Act and the regulations is that the Act will be debated on and voted on in parliament, but the regulations are brought into effect by the Governor General without a vote, and suggested by the Executive Council (which is made up of all current government Ministers). There are some limitations within the Act on what the regulations must or can contain, and parts of the Act defer to the regulations. The distinction is important, because once the Act is passed into law, it will be extremely difficult to make further amendments, but the regulations will be consulted on further.
The Select Committee has taken on feedback and made some improvements to the legislation.
Several of the key improvements that we recommended have also been neglected.
It is likely that the proposed changes in the report below will be added to the Bill before it returns to parliament for its third reading this week. The MPs will then debate on further amendments, before voting on the final wording. We expect that the current parliament will pass it, and the final version will be the 59th SOP, with the proposed amendments in the Select Committee’s report. The bill will then proceed to the Governor General to give royal assent where it becomes law. The new process will begin once the regulations have been developed, and the Bill allows up to 18 months for that to happen. Until then, the existing family court process will remain in effect.
What the report says regarding issues we submitted on
You can read our submission here.
The recommendations in Gender Minorities Aotearoa’s submission included:
Recommendation 1
That the NZ government ensures permanent residents retain their right to legal gender recognition, through an administrative process based on self-determination (self-identification) so that it is consistent with the changes the Bill is making for other trans and intersex people in Aotearoa.
Recommendation 2
That the NZ government issues transgender and intersex asylum seekers and Convention refugees with an official identity document which shows their correct name and sex marker through a self-declaration process. For example, this could be through a certificate of identity issued by the Department of Internal Affairs and/or the Immigration New Zealand.
Recommendation 3
That the NZ government explores options for migrants on temporary visas to be able to obtain an official document with their correct name and sex marker through a simple, administrative, self-declaration process.
The current process through the family court can result in either a court order for the Registrar General to amend a New Zealand birth certificate, or a court issued declaration as to sex for anyone born overseas who has the right to live here indefinitely. Removing the family court process makes amendments significantly more accessible for people born here, but removes access to any legal recognition of affirmed sex for anyone born overseas. The select committee acknowledges this as a significant issue, and one which was brought up in hundreds of submissions calling for improvements.
However, the committee report claims “Disappointingly, we conclude that an adequate, sustainable, and effective solution cannot be proposed in our recommended amendments to the SOP without delaying the bill significantly” and instead recommends that “the Government commit to pursuing a solution that would allow overseas-born New Zealanders to register a nominated sex.”
The proposed changes to Clause 4 of the definition of an eligible person made no changes to the proposal before the submission process. The new definition is restricted to people whose births are registrable under the Act – which means you either need to be born here, or have been adopted by New Zealand citizen parents.
These responses leave transgender people with overseas birth certificates without any certainty going forward. Though the report recommends the government looks into solutions, there is nothing that would actually require them to do so. Additionally, there is no assurance that the specific and diverse needs of transgender refugees, asylum seekers, and migrants without permanent residence will be considered. Rainbow Path has been lobbying specifically on this gap in the Select Committee’s report. You can read more in their blog.
Recommendation 4
Ensure that trans, non-binary and intersex people are not required to meet unnecessary additional requirements when making subsequent changes to their sex marker by:
a. removing new clause 22B(1)(d) unless there is a strong evidence-based rationale for making this distinction based on a person’s gender identity, or
b. consulting trans and intersex led organisations and individuals on any regulations developed in relation to this SOP, including by resourcing them to participate fully in those processes.
Neither of these recommendations have been supported by the Select Committee. It is clear from the report that they accept the need for a person to be able to amend their birth certificate more than once, but they are worried people will make multiple amendments to commit identity fraud. This issue was the key focus of our oral submission, and we presented evidence to support that people who revert to their birth sex usually do so temporarily, that gender is fluid and may take multiple forms over a person’s life and that people who have already amended their sex marker under the old law would be disadvantaged in applying for a more accurate sex marker under the current law. In particular, we stressed that adding extra hurdles for people seeking to amend their sex marker to something new that aren’t applied to someone changing their sex marker to what they were assigned at birth privileges cis identities under the law.
The committee’s response did not follow our recommendations, though it acknowledged these points. They ensured that cis identities are not privileged in the legislation by removing the exemptions from extra scrutiny for people applying to change their sex marker back to the one assigned at birth (in clause 22C). This mean everyone seeking to make subsequent amendments to a new sex marker faces some additional hurdles. While this may give the impression of equality, it is a move away from equity in that it will remain a barrier to gender recognition for people who choose to transition, whether for a second or third time.
The proposed changes to Schedule 1 mean that any changes under the previous law must be treated equally as changes under the new law. However, changes made under the previous law will be exempt from additional requirements for a second change under this law. This means, for example that if you have previously had your sex marker changed to a binary sex marker, but would like to take advantage of the new non-binary options you can do so without jumping through additional hoops.
The exact nature of what constitutes ‘special circumstances’ will have to be set out in the regulations and agreed to by the Minister (of Internal Affairs). Changes to Clause 147 also state that these must not rely on medical transition and must not be ‘unreasonably inaccessible’ – although what this means is at the discretion of the Minister to decide.
Recommendation 5
Remove 22B(1)(c), allowing a 16 or 17 year old to make this decision.
Amend new Clause 22C (1) (d), so that either a legal guardian or a health professional may make the application on behalf of a child aged 15 or under. [not both].
These recommendations are not supported by the Select Committee. Anyone aged 15 or under will still need to provide a letter from both a guardian and a qualified third party, while people aged 16 or 17 only need one of them. The report acknowledges that this aspect of the bill is highly contested, with many submissions in favour of loosening restrictions for young trans people but many also opposed trans young people having any recognition on their birth certificates or imposing more rigid restrictions. This was one of the only aspects of the anti-trans submissions which the select committee has given consideration to – in particular their fear that youth may be pressured into being trans by parents. Their conclusion is that making no changes is the best decision in the interest of ‘balance’.
The committee has tried to provide some further clarity on who exactly constitutes a ‘qualified third party’. The specifications have been deferred to the regulations, however proposed amendments to Clause 147 make it clear that there must be a reasonable range of options for who is eligible, they must have known the applicant for a certain amount of time and it cannot be restricted to healthcare professionals.
Changes to Clause 22 add wording requiring the third party to attest that they “believe” the young trans person is their affirmed gender and understand the impacts of amending their birth certificate. It is unclear why this wording has changed, but it appears to put less onus of the third party to assert they intimately know and can speak for the trans person’s gender. An addition to Clause 4 also specifies that this person must be at least 18 years old.
Recommendation 6
Consult with transgender, non-binary, and intersex people and organisations on any regulations developed in relation to further sex or gender options for birth certificates, including by resourcing them to participate fully in those processes.
This has been addressed, however it lacks clarity. There is a recommended change to Clause 147, which specifies that when making recommendations on what should be written in the regulations, the Minister (of Internal Affairs) must consult with: The Human Rights Commission, the communities the Minister feels are most affected and any other organisations or people the Minister feels are appropriate to consult. Part of the planned implementation of the legislation includes a five year review of the policy. There is no way of knowing who the Minister of Internal Affairs may be in five years, or any other time an executive council wants to address the regulations, and a clause in the legislation that empowers the Minister to consult anyone they feel is relevant may put us into a position where a Minister considers anti-trans lobby groups should have a seat at the table.
There is no mention in the report on how communities and individuals who give their time, experience and expertise to this consultation process will be resourced or compensated. This is unsurprising though, since this is not something that is included in legislation, and is dependent on the Department of Internal Affairs’ policies and practices of the day.
Recommendation 7
Amend Clause 11(2) and 11(3)(c), and 12 (3) references to ‘the mother’ and ‘the woman’. Instead use legally accurate language such as ‘the birthing parent’.
This is not mentioned in the Select Committee report, however the DIA Departmental report, which provides a more detailed analysis of the submissions, notes that this was recommended in 105 submissions, but claims that the recommendations are ‘out of scope’ as the Select Committee was intended only to address the self-identification aspects of the proposed bill.
Other changes proposed in the Report
Clause 2
The only change gives the Executive Council powers to amend the regulations the day after royal assent. This means they will be able to start doing the consultation process to identify the non-binary gender options straight away.
Clause 22
The need to “intend to live as a person of the nominated sex” has been removed from the things that must be included in the statutory declaration, leaving just that they are their nominated sex and that they understand the impact of amending their birth certificate. This is definitely an improvement.
Some changes have been made to ensure that if an adult registers to change their name and sex marker at the same time, their nominated name is listed without their previous name on their birth certificate.
Clause 80
The change of wording here has very little change on the meaning. It’s an important clause, because it deals with whether a birth certificate is a legal evidence of sex. There is currently no single or fixed legal definition for sex, and the clause makes it clear that an amended birth certificate may be counted as evidence, but “any other relevant information” may also be counted. The applications for this are primarily in the exceptions where discrimination on the basis of sex is permitted under the Human Rights Act, (which is also under review, with the intention of better protecting transgender and intersex people). There is currently no legal definition of sex, so this may be decided in courts. While it’s not ideal to have one’s legal status in human rights law decided by a judge, it does also mean that trans people who have not been able to amend their birth certificates are not by default legally considered their assigned sex at birth either.
Clause 115
Changes the wording more than the meaning. It means the Registrar General will keep a record of previous name/sex marker changes, and is obligated to share them with agencies who “have an interest in ensuring that people do not have more than one identity”. The government is concerned that people may exploit the new laws to commit identity fraud, however there is potentially a risk that anti-trans lobbyists may use this clause to access confidential information about a person’s transgender history. Whether or not the information is shared “with good reason” is at the discretion of the Registrar General.
In summary
Good progress has been made for many transgender people, and this change has come about through the hard work and great submissions of many many people in our communities. The amount of growth and deepening of understandings which have come about because of this process is huge. Amazing work everyone.
It’s not as great as we would have liked, and trans people born overseas have not been provided for under this legislation, which will remove their path to legal gender recognition once the provisions come into force within the next 18 months. Continuing advocacy on this is important ongoing work, to ensure the government creates a fair and equitable process for their legal gender recognition. Rainbow Path will be leading the way on this ongoing work, particularly in relation to asylum seekers and refugees, and we will be supporting them.
In the meantime, we have written a guide for anyone seeking to use the Family Court “declaration as to sex” while it is still an option.