BDMRR stands for Births, Deaths, Marriages, and Relationships Registration. This is an Act in New Zealand law which sets out the legal aspects and requirements about the registration of Births, Deaths, Marriages, and Relationships. This includes the legal requirements for birth certificates, including changing the name or sex marker on a person’s birth certificate, due to marriage, civil union, or being transgender, for example.
There are a number of problems with the BDMRR law as it currently stands, which make it very hard for trans people to update the sex marker on their birth certificate – over 80% of trans people in Aotearoa NZ have the wrong sex marker on their birth certificate.
In 2018 a Bill to change this law was developed, and has now been through a rigorous process including two Select Committee reports, robust examination of advice from officials, and public submissions. In 2021, the new Minister has sought further advice and has committed to pass it into law by late 2021 or early 2022. She is soon to release an updated Bill.
There is a BDMRR 101 Primer available here.
Take Action Now
In April 2021 Minister Tinetti said she is yet to decide whether the Bill will go back to the Select Committee for further submissions or straight to Parliament, where MPs will debate it’s contents.
Our professional opinion is that the Bill will probably go back to the Select Committee for further submissions. We should know this by June or July, and would probably have 4-6 weeks to make submissions.
The Government has committed to pass this law and has enough votes to do so. Our concern is whether the 2021 version of the Bill will be stronger than it was before.
The BDMRR 101 Primer is essentially an example of a submission, though you could pick any of the points from the primer to talk about, or there may be other issues you would like to raise. You can also see previous submissions on this Bill below – both for and against the Bill.
You can see more information on how a Bill becomes an Act below, along with the contact details of MPs who you may wish to contact.
Right now is the best time to learn about the issues, draft a submission, and be ready to make changes to it depending on what is in the 2021 Bill when it’s released.
It’s also a good time to put leaflets in your neighbors’ letter boxes, hand them out in the street, talk to people about why you support the BDMRR changes and self-determination for trans people, write letters to newspaper editors.
What you can do when the 2021 Bill is released
Once the Bill is released, we need transgender people and supporters to make submissions supporting legal gender recognition provisions that are based on self-determination. You can read our BDMRR 101 primer above – it has a lot of useful information to help you understand the issues, and be prepared to make a submission.
You can also see the rainbow community statement below, which was written just before the last version of the Bill was released in August 2018. It set out the types of legal changes that were needed and why. This statement was written by takatāpui, trans and non-binary people and organisations in Aotearoa New Zealand, and endorsed by a number of organisations and individuals, including former Human Rights Commissioners. It was written and published in a short timeframe, so it was not circulated broadly for people to sign on.
Recommendations once the 2021 Bill is released
1. Support the need to change the current law
Many rightwing conservatives, fundamentalist faith based groups, and anti-trans campaign groups want to keep the current BDMRR Act, which requires trans people to have medical interventions and go to the Family Court before they can amend their birth certificate. These campaigns against the Bill are based on mis-information and harmful stereotypes of trans people, especially trans women.
It is critical that transgender people and supporters make submissions supporting the BDMRR Bill – so that trans people can change their birth certificates to match other ID documents.
A birth certificate is the only ID document that anyone born in Aotearoa can access which cannot ever be taken away from them. The more support for the Bill, the more likely that MPs will resist pressure to make the Bill weaker because of the campaign against it.
2. Suggest ways to improve the Bill
When the BDMRR Bill was released in August 2018, we saw that it needed significant improvements. The new Minister has said she is making changes to the 2018 version. When the 2021 version is released, GMA will provide its analysis about what is still missing – let us know your thoughts as well.
This initial response to the 2018 Bill (below) was sent to the previous Minister from a group of rainbow community organisations, explaining some of the changes needed. It’s been almost three years since that letter was written and our communities do not want to keep waiting for the next review of the law for any of these changes.
Trans individuals, and groups such as Rainbow Path, have been lobbying for options for trans asylum seekers and Convention refugees who aren’t permanent residents to have official documentation with their correct name and sex marker.
Our concerns include
The 2018 Bill only applies to people with a NZ birth certificate. Even the existing BDMRR Act allows permanent residents and citizens born overseas to use the current Family Court process to get a Declaration as to Sex with their correct name and sex / gender marker. The 2021 Bill should include an option for trans migrants that is a simple, administrative process, similar to that being introduced for trans people born in Aotearoa or being considered for asylum seekers and Convention refugees who are not permanent residents.
The current law does not include a non-binary option for birth certificates.
It is important that sex markers can be updated by youth, regardless of age, and that sex markers can be updated more than once, as a person’s gender may change over time.
Update!!
History of the Bill
2017 – 2018: The Bill went to the Select Committee in 2017, containing no changes to the current Family Court process. Yet, the Select Committee had just released a separate report saying the process for changing sex details on a birth certificate needed to change to be based on self-identification, in response to a petition started by Allyson Hamblett (below). The Government’s response to that Select Committee report also reinforced that the focus of the Select Committee’s review of the current BDMRR Act now included issues raised in the petition.
Many people then made submissions to the Select Committee. Community submissions explained why changing the Family Court process was necessary, and how it should be done. After hearing all the submissions, in August 2018, the Select Committee produced a new version of the Bill, introducing a simpler process for changing the sex marker on birth certificates without going to the Family Court. It was a huge improvement, though it still fell short of meeting trans and intersex people’s needs. A number of community groups wrote a joint letter to the then Minister Tracey Martin, offering suggestions to improve some of the terms in the Bill, making it the same process as changing the sex marker in passports, and noted some gaps that needed to be addressed; such as legal gender recognition for asylum seekers and refugees. You can read that letter in section 2, above.
2019 – 2020: The Minister at the time then “deferred” the Bill and instead formed a Working Group to recommend how the Family Court process could be fixed without changing the law.
2021: The Working Group’s report was released on 29 April 2021, along with the Government’s response, below. The Working Group identified a vast array of problems with the current process and ways some of these could be improved – and made it clear that a law change was also needed. In her media release shortly after, Minister Jan Tinetti agreed, saying she intends to progress this Bill, with the hope of passing it in 2021 – “The Bill will enable people to self-identify their sex on their birth certificate without going to the Family Court. They will instead be able to apply online as they currently do for other identity documents, like driver’s licenses and passports.”
Department of Internal Affairs overview, timelines, and reports.
New Zealand Parliament history of the Bill, related reports, and other papers including public submissions.
In a historic moment, Statistics NZ announced their plans to count all people in NZ, regardless of gender, in the next census. A separate but related document, the NZ Statistical Standard for Sex and Gender, is currently under review, and Statistics NZ has called for public submissions on their proposed changes to the statistical standard, which are open until August 13th 2020.
In short, we are calling for trans people and our allies to make a submission in support of the following proposed changes to the NZ Statistical Standard for Sex and Gender.
Key Points
- The proposed gender definition.
- Adding “Another gender” as a response to this gender question.
- It should be made explicitly clear that the proposed ‘2 step method’ of asking gender as well as sex assigned at birth is only appropriate in extremely limited circumstances, such as national population surveys (explained further in the example submission below), AND must always use the framing of ‘sex assigned at birth’.
- An intersex variation question should be used when intersex population data is required, in addition to sex and gender questions, again in extremely limited circumstances.
- SNZ must clarify that the only question that should be asked in most surveys and any individual applications is a person’s gender. (Although GMA notes that in many instances of individual information collection – rather than studies and research – this information does not need to be collected at all).
Further information
Formerly, the census question on gender asked ”Are you: Male [] Female []”. Statistics NZ is proposing that a gender question should have a third option added, ”Another Gender []”. This would provide a way of counting all people whose gender is a cultural one, any form of non-binary gender, or any other gender that is not covered by the male/female binary. Statistics NZ is proposing that most surveys and forms only ever ask for people’s self-defined gender. They are calling this ‘gender by default’.
Statistics NZ is proposing that there are only very limited times when this data is needed. One of these is when we need to compare the experiences of trans people overall against the general population, or in comparison with cisgender people’s experiences. So, in anonymous surveys, they are proposing this a new question ”What was your sex at birth?” [note we strongly suggest this is changed to ‘sex assigned at birth].
Statistics NZ is proposing that a sex at birth question is never asked on its own. The only time it would be asked is together with a gender question, in limited circumstances where it is necessary to compare the experiences of transgender people overall against those of cisgender people. Having a gender question and a sex (assigned) at birth question together is called the ‘2 step’ method.
In the consultation document Statistics NZ explain why they aren’t simply asking ‘’are you transgender?’’. This includes that any single term like ‘transgender’ gets outdated and could exclude many people who don’t use that specific term. For example, this might include some non-binary people, some who consider themselves transsexual and not transgender, some takatāpui, and some people who consider themselves full time drag queens, and those who don’t feel ‘’trans enough’’ to call themselves trans, and those who may be confused about whether they should tick male or female alongside transgender to show they are, for example, a trans man. It is also challenging to design a question using identity terms that is understood by the broad range of trans people and cisgender people of all ages who fill out the census and other official surveys.
‘Are you transgender?’ would also tell us less about the trans people who do answer the question. In particular, if someone says their gender is “another gender” and that they are trans, there is no way of knowing whether they were AMAB or AFAB. That reduces the information our communities will have about the different needs of those two non-binary populations.
Some trans people are concerned that the question ”What was your sex at birth?” sounds very similar to ”What is your biological sex?’. We e share this concern and prefer a question asking ”What was the sex assigned to you at birth?” – we will be giving Statistics NZ that feedback. But, we also recognise there is a difference between ”your sex at birth” and ”your biological sex”. This distinction is very important, for the following reasons.
Understanding sex classifications
Each person’s sex characteristics include their chromosomes, hormone patterns, gonads (reproductive organs) and genitals. These are all parts of a person’s physical or biological makeup but are not what are used when someone’s sex is assigned at birth and recorded on their birth certificate. Most people have never had their DNA measured, and many trans people have changed their hormonal balance and potentially other aspects of their sex characteristics through gender affirming medical treatments. A person’s sex recorded at birth is typically based on looking at only one part of the infant’s “sex characteristics” – their external genitalia, and is assigned to them based on this imprecise measure.
While ‘sex at birth’ implies that there is an accurate process behind the assignment of sex, this is far from the truth.
It is scientifically inaccurate to assume that all people can be defined as male or female based on their sex characteristics or that sex characteristics cannot change over time. Such assumptions fail to recognise the diversity of the sex characteristics that intersex people are born with, or the biological and physiological sec characteristic differences trans people experience through gender affirming medical treatments.
Using the term ‘biological sex’ to describe the sex recorded when we are born inaccurately assumes that everyone’s sex is clearly male or female at birth and never changes. Using the term ‘sex assigned at birth’ clarifies this.
When trans and intersex people are not counted accurately, it is difficult and, in some cases, impossible to advocate for our rights. We need to have accurate data so that funding and resources are allocated to meet the size of our population and the needs of different parts of our communities. For example, until recently, it was thought that there were many more trans women than trans men in Aotearoa, and we had no data on non-binary numbers. This led to different levels of genital reconstruction surgery funding for trans women and trans men, and particulardifficulties for non-binary people trying to to access gender affirming medical care. We now know that the largest trans group in Aotearoa is actually non-binary people, but we need to know whether they are AFAB or AMAB, and whether this makes a difference to their life circumstances, and in what ways [ Counting Ourselves, 2019]
Some international data tells us that, for example, the employment discrimination that trans men face reduces if they have access to and choose to take hormones and have top surgeries and are read as cisgender men, while trans women are more likely to continue to experience high levels of employment discrimination. Asking a gender and a sex assigned at birth question in official surveys could help us find out if that’s also the situation here, and whether access to gender affirming healthcare early in life could prevent such discrimination in the longrun for trans women as well [IZA World of Labor].
Local data is very important for understanding what policies and laws need to change and which services are needed by whom. There is no government data on this, so having a two step question in the census and other official population surveys is very important. Together they increase our potential ability to understand all forms of gender-based discrimination and violence by distinguishing between the experiences of trans women, trans men, non-binary people (both those AMAB and those AFAB), cisgender women, and cisgender men, as well as intersex people – who may fall into any of these categories additionally.
We are also aware that the terms sex and gender are used interchangeably across many government agencies. We don’t feel a need to distinguish between the terms in situations where it is clear that people are able to make a response that matches their self-defined identity, whether that identity is trans, cis, intersex, both, or any other term. Having a more specific ‘sex assigned at birth’ question clarifies the distinction that sometimes needs to be made to measure the transgender and cisgender populations.
Further Implications
The anti-trans campaign group ‘Speak up for Women NZ’ has a coordinated campaign with support from many international anti-trans campaigners and far right political and faith based groups. It is usual for groups such as these to organise a great number of international submissions, which pretend to be from NZ. This is a well-documented tactic of far right groups. The anti-trans extremist movement is small but well networked across different countries. They aim to focus on a particular country to block laws and policies that respect trans rights.
Part of how they do this is to push for ‘equal but separate’ and promote options that are based on the idea that “biological sex” is an immutable category from the time it is assigned, in order to exclude trans people – with a focus on trans women – from human rights. Some examples of their tactics in NZ include contacting schools to stop transgender from being included in sex education classes, and campaigning against the BDMRR bill which intends to allow transgender people to change the sex on their birth certificate without the current requirement of ‘permanent medical changes’. Each time they are successful, these campaigns are referenced and used politically by other countries.
It is vital that trans people and our allies make submissions, and present a unified voice where possible.
Have your say
Read the proposed changes and make a submission. You can read the full document, including the info sheet on how to fill the form, and make a submission here [link]. Your submission can be as short or long as you like, and doesn’t have to cover everything. The submissions close at 5pm on Thursday 13 August 2020.
Example submission based on recent discussions among trans people. This includes the relevant questions from the consultation document.
Q7. Gender by default principle
To what extent do you agree or disagree with the gender by default principle in the proposed standard?
a. Strongly agree b. Agree c. Neutral d. Disagree e. Strongly disagree
For details see Proposed solution – ‘gender by default’ principle.
Q8. Please explain the reason for your rating:
Statistics New Zealand (SNZ) proposes that the ‘gender by default’ principle is adopted in the updated standard. This is an approach that defaults to the use of gender data as opposed to sex assigned at birth. Collection of sex assigned at birth information should be viewed as an exception. Rare occasions where you might need this are for identifying the size of the trans population in population-based surveys or when this might be useful for trans people’s health. We support this principle, because it respects people’s dignity and right to self-determination. In almost all cases, a person’s gender – their social and personal identity based on lived experience – is most relevant for data collection purposes. Having a person’s ‘biological sex’ or sex assigned at birth as the default in data collection causes harm to trans people and also makes it impossible for non-binary people to be counted in official statistics.
We believe that in many cases in Aotearoa New Zealand people are asked about their gender when it’s not at all clear why this information is needed. In some situations, such as with banks and other organisations which require security, collecting data on gender creates additional barriers for trans people whilst only providing minimal added security. We agree with SNZ that people should carefully consider whether they even need to collect gender data.
We believe that SNZ should provide guidance about removing sex data in admin records when we move to gender as the default. We are aware this is a problem in places such as schools where gender data is already collected by default, but because school databases require proof of New Zealand residence, sex details on birth certificates are also routinely collected and have become the default.
Q9. ‘Gender’ concept definition
To what extent do you agree or disagree with the proposed definition for gender?
a. Strongly agree b. Agree c. Neutral d. Disagree e. Strongly disagree
For details see Proposed solution – an overarching concept of ‘gender’.
Q10. Please explain the reason for your rating:
SNZ proposes the following gender definition: ‘Gender refers to a person’s social and personal identity as male, female, or another gender such as non-binary. Gender may include how a person describes themselves (‘gender identity’), and/or the gender a person publicly expresses (‘gender expression’) in their daily life. A person’s current gender may differ from the sex recorded at their birth and may differ from what is indicated on their current legal documents. A person’s gender may change over time. Some people may not identify with any gender.’
We agree with this definition in that it includes trans men in the category of “men” and trans women in the category of “women” and welcome that it allows for more that two genders and notes that gender may change over time and some people might have no gender.
We would also prefer that this definition emphasised that everyone has the right to self-define their gender (without any need to undergo medical, legal or other coercive steps).
Q11. Another gender
To what extent do you agree or disagree with the use of ‘Another gender’ in the standard?
a. Strongly agree b. Agree c. Neutral d. Disagree e. Strongly disagree
For details see: Proposed solution – ‘another gender’ in gender question.
Q12. Please explain the reason for your rating:
We agree that SNZ’s proposed term ‘another gender’ is more accurate than the previous ‘gender diverse’ term. We are concerned that ‘another gender’ might be ‘othering’ of those people who are not male or female. The gender concept definition recognises “some people may not identify with any gender”. SNZ should consider whether to clarify in guidance whether ‘agender’ and ‘genderqueer’ (or people who don’t identify with any named gender) would be included under the ‘Other gender’ option.
Q13. Two-step method
To what extent to you agree or disagree with use of the two-step method in the standard?
1. Strongly agree 2. Agree 3. Neutral 4. Disagree 5. Strongly disagree
For details see Proposed solution – two-step method for identifying transgender and cisgender populations. Sex and gender identity statistical standards: Consultation
Q14. Please explain the reason for your rating:
We agree with the use of the two-step method in the updated standard.
This involves asking a question about sex assigned at birth, combined with a question on gender. The two-step approach is considered best practice for use in population representative data collections, where reflecting the transgender population is required. It is also the approach implemented by Statistics Canada in some of their surveys.
The SNZ consultation document notes a trans status question as an alternative to the two-step method. We agree that including a trans/cisgender status question is appropriate because we believe that for most data collection, using this question is more appropriate than the two-step method. The discussion document already notes that the wording of a trans status question may not be inclusive of all people, and we note that it may not reveal data on intersex people, some of whom are transgender and some of whom are not.
We believe that SNZ should consider whether a trans/cisgender status question should include the option for people to identify as cisgender, to make it consistent with other demographic questions which name the majority group (e.g., ‘straight/heterosexual’, ‘Pākehā’). This would help to build knowledge about the word cisgender and help cisgender people to be able to reflect on their own experiences and how they differ to trans people and help trans people to feel less like an anomaly. We are not aware of any previous use of a question like this and we note that this would require the term ‘cisgender’ to be explained in the guidance notes.
We believe SNZ should provide guidance about what the pros and cons of a trans/cisgender status question instead of the two-step method if we need to identify if somebody is trans or cisgender. For example, a question about trans/cisgender status should be most appropriate for most demographic data collection purposes, but a two-step method would be more appropriate for research on the demand for gender affirming healthcare.
Q15. ‘Sex at birth’ concept definition
To what extent do you agree or disagree with use of the sex at birth concept in the standard?
a. Strongly agree b. Agree c. Neutral d. Disagree e. Strongly disagree
For details see Ambiguity in the current sex standard.
Q16. Please explain the reason for your rating:
SNZ proposes introducing a specific definition and question module based on ‘sex at birth’ for use in surveys, used solely in the two-step method (where identifying trans populations is required). Sex at birth refers to the sex assigned to and recorded at a person’s birth (e.g. recorded on their original birth certificate).
This proposal improves the current sex concept definition which is binary, focused on biological sex and outdated, i.e.: “the distinction between males and females based on the biological differences in sexual [sic] characteristics”.
While we are aware of international evidence, mostly from North America, that the two-step method is a useful way of identifying the trans population, we note that most of that evidence has been collected from a question that asks about sex assigned at birth. We believe that from a transgender community perspective, the most appropriate wording would be “sex assigned at birth”; this is the commonly used phrase used in transgender communities because it names the coercive social process that we experience from other people and our society. We believe that other phrases like “sex at birth” and “sex recorded at birth” are too neutral and they do not name this harm. Official identification documents, primarily birth certificates, are one of the primary tools used for assigning sex at birth and coercively enforcing binary genders. Many trans and intersex organisations and human rights bodies are increasingly advocating that registration of sex and gender in identity documents should cease.
We are also very concerned that the phrases “sex at birth” and “biological sex” reinforce transphobic arguments that this is a person’s ‘original’ or ‘true’ sex. We note that everybody is assigned a sex, usually based on a cursory physical examination at birth.
Similarly, we would prefer that the proposed SNZ definition of gender noted that transgender people include those whose gender is different from their ‘sex assigned at birth’ rather than their ‘sex recorded at birth’ (this is discussed further below).
We are aware that many trans people find it difficult or upsetting to be asked about their sex assigned at birth. However, many trans people also understand that this is sometimes necessary when there’s a clear need to ask this. We believe that SNZ should make it clear that if an agency or organisation wants to a person about their sex assigned at birth, they must only do this when the reasons are clearly justified, such as accurately representing the size of the trans population in a population-based survey, or for understanding the number of trans people who were assigned male at birth or assigned female at birth for healthcare access reasons. SNZ should clearly note that when collecting information about an individual for individual purposes (not nationally representative data collection), a transgender status question is more appropriate eg. ‘are you transgender?’. This could be done by adding another step in the guidance diagram saying “do you need to accurately count the size of the transgender population in a population-based survey and differentiate between transmasculine people (who were assigned female at birth) from transfeminine people (who were assigned male at birth)”; this guidance should also stress the very limited times when that might be useful, and that it is unnecessarily invasive to ask this in almost all circumstances.
Many trans people will not want to disclose their sex assigned at birth. Any medical information about a person being transgender should be treated with confidentiality. Trans people have the right to choose whether to disclose this information, to access any such information held by others, and to place restrictions on who else can access this information.
In clinical settings, this is clinical information which should never be default information collected in a patient’s administrative records. Patients’ administrative records should be based on a person’s self-defined gender.
It would be unacceptable for sex at birth to become the default option, regardless of how this was defined.
We believe that SNZ should provide guidance that a sex assigned at birth question is voluntary, and information is given about the ways that the anonymised data collected from this in SNZ surveys can be used.
Q17. Intersex information needs
To what extent do you agree or disagree that this approach will meet information needs for the intersex population?
1. Strongly agree 2. Agree 3. Neutral 4. Disagree 5. Strongly disagree
For details see Collection of intersex population data is complex.
Q18. Please explain the reason for your rating:
We propose adoption of an intersex variation question where intersex population data is required.
Where intersex population data is required, international best practice is to use a separate question asking whether a person was born with an intersex variation.
Q19. Further information we might like to share –
Is there any other information you would like to share to assist us in the review of these standards?
Based on this human rights approach, Statistics NZ should ensure that the expert advisory group convened to provide input to the consultation document also reviews the process used to analyse the feedback received. We encourage broadening the membership of that group to include Gender Minorities Aotearoa, to ensure more trans women and takatāpui participation. We note that Gender Minorities Aotearoa is the organisation with the highest number of transgender and intersex engagements across the country. It is important that there remains an ongoing process for consultation between trans, intersex and other Rainbow communities and SNZ.
We also suggest that SNZ undertake work toward meaningful integration of Te Tiriti o Waitangi in the sex and gender data collection standards. For example, having separate standards for sex, gender, and sexuality seems to align most closely with Pākehā understandings of these concepts. We believe that it is important for people to have the option to endorse terms and personhood concepts that are from the tangata whenua of Aotearoa.
It may be more appropriate for Aotearoa to develop identity standards and classifications that recognise there are culturally specific Māori, as well as Pasifika, identities and terms that convey a mix of gender and/or sexual diversity. We are aware that members of the kaupapa Māori rainbow organisation Tīwhananwhana Trust – which advocates for takatāpui – have shared some cultural touchpoints for this current review, specifically; tātau tātau and kōtahitanga for collective inclusivity, motuhake for uniqueness, tino rangatiratanga the power to choose, manaakitanga enhancing the process of assistance – or what GMA would consider ‘uplifting the humanity’ of trans people, aroha – empathy and compassion, mana as individual and collective prestige (in this context). These cultural touchpoints are crucial for this work and a broader review of these and other standards and classifications so that they are appropriate for Aotearoa New Zealand.
Read the full document and info sheet and make a submission here [link]
