The Department of Internal Affairs is looking for people to help test the new application form for amending the sex on birth certificates. Here is a message they’ve asked us to share.
Message from DIA
Kia ora,
The Department of Internal Affairs (DIA) is looking for volunteers to participate in user-testing a new application form for amending registered sex on birth certificates. We are looking for people who have considered amending the registered sex on their birth certificates.
If you’ve considered amending the sex on your birth certificate, and you’d like to help us test the application form, we’d be very interested in hearing from you. Please read below for more information on the sessions, your privacy, and how to get in touch with us.
Background
DIA is developing a new process that will allow people to self-identify the registered sex on their New Zealand birth certificates, so the documents better reflect the person’s identity.
Self-identification means people will no longer need to go to the Family Court to complete this process. Instead, people will apply directly to the Registrar-General by filling out and submitting the application, including a statutory declaration, to DIA.
A new application form is being developed to make this process as accessible and straightforward as possible. We are seeking assistance from members of transgender, intersex, takatāpui and non-binary communities to help us user-test the proposed form. This will help ensure that it is user-friendly, inclusive, and accessible.
User-testing sessions
The user-testing session will involve sitting with a researcher, filling out the proposed form, and providing feedback on the process. Interviews are voluntary, confidential and will follow pre-set questions. These questions will be shared with you prior to the session.
User-testing is scheduled for the end of March. We will arrange a time and location convenient to participants, and all participants are welcome to bring along a support person. Sessions will take 45-60 minutes and we will offer a koha for participants’ time.
Privacy
Notes and insights captured during the session will be anonymised to protect participants’ identities. You are welcome to use fictitious personal information if you prefer.
No identifying details will be recorded during the session. The research team does not have access to participants’ records at DIA, and no information provided during these interviews will be associated with any current or future applications.
How can I help?
If you’d like to help us out with user-testing, please get in touch with me at my email address, tavis.milner@dia.govt.nz, to arrange a session time.
Ngā manaakitanga, Tavis Milner Kaihoahoa Ratonga Matua | Senior Service Designer Kāwai ki te Iwi | Service Delivery and Operations Te Tari Taiwhenua | Department of Internal Affairs
This is our submission to Department of Internal Affairs, on the proposed self-identification regulations. Submissions are due today at 5pm. If you haven’t made a submission yet, but you’s like to support our submission, you can email bdmrr@dia.govt.nz and tell them you support our submission.
Submission to Te Tari Taiwhenua – Department of Internal Affairs. The self-identification regulations and recognising gender for people born overseas. PART ONE: Details of the self-identification process.
About us
Gender Minorities Aotearoa is a nationwide transgender organisation. It is run by and for transgender people; including binary and non-binary, intersex, and irawhiti takatāpui. We operate within the kaupapa Māori public health framework Te Pae Māhutonga, and The Ottawa Charter (1986). We provide over 2,000 individual peer supports each year, to transgender people of all ages, cultures, and backgrounds. Our resources for updating identity documents have been accessed 1,132 times so far in 2022, and our staff member who is a Justice of the Peace has provided JP assistance 21 times.
Issue 1. Options for prescribing sex and gender markers available for the self-identification process
We believe that a default of no sex marker is ideal for self-determination, as it would allow individuals to opt-in when and if they decide to do so, and we recommend that ideally Section 6 (a) (iii) be removed from the Regulations. We would like this recommendation to be reflected in the report to the Minister, following this consultation.
However, in lieu of the option to remove the sex marker entirely, we believe that it is essential to have the option of an “unspecified” marker, such as the “X” available on NZ passports.
We recommend the following options for capturing population gender information, and believe these to be the appropriate markers for birth certificates:
Male (M) Female (F) A non-binary gender (N) Unspecified (X)
This captures everyone who identifies as a binary gender (male and female), and everyone who doesn’t (non-binary genders). It also gives an option for those who do not identify with either (X). This “X” option would be automatically consistent with passports in New Zealand Aotearoa, and is one of the more common third gender markers recognised on other passports around the world.
We recommend that these 4 options have a te reo Māori translation included, in the same manner that the Male and Female markers currently do. For non-binary genders we recommend ira tāhūrua-kore, and irahuri. [1]
We recommend against including a takatāpui marker, as this indicates both ethnicity and being rainbow-identified (which might include lesbian, gay, bisexual, and other identities). This information (ethnicity and sexual orientation) does not belong on a birth certificate.
We recommend against including a gender diverse marker, as diversity is a relationship, rather than an individual experience. It’s also a euphemism for transgender and non-binary, which comes from cisgender people and cisgender-led rainbow organisations, rather than trans and non-binary people themselves, or transgender-led organisations. It also serves no functional purpose in this context.
We recommend against including an intersex marker, primarily because it undermines the safety of people born with an intersex variation. This is also the position held by intersex activists and intersex advocacy organisations, broadly.
Further context to our recommendation against including a takatāpui marker.
These are discussion points raised during conversations between Māori transgender members of our staff.
Including a takatāpui marker would mean:
It would specify being Māori, making people an additional target for racism. There are very strong reasons why birth certificates no longer have ethnicity on them. These include standard privacy concerns, as well as a history of serious harm being done on the basis of recorded ethnicity in this kind of state record. We do not need tools or data that can be, and have historically been, used for ethnic discrimination. It would specify being rainbow identified (as opposed to just being a sex marker). The government does not have a mandate to collect sexuality information in this record. The law requires information about sex, not about sexual activity. It could be used by non-Māori rainbow people. It could be used by non-rainbow Māori people. It would be impossible to manage/enforce a specific way of using it. It would empower the government to store further information on rainbow Māori in perpetuity for its own purposes without meaningful oversight or control by rainbow Māori, denying rainbow Māori sovereignty over data collected about them. This directly contradicts a commitment to tino rangatiratanga. Orgs/services which use sex information as listed on birth certificates will need to update their policies, and may not do so with the requisite respect for tikanga and kawa around Māori people’s sex and sexuality. It would not contribute to tino rangatiratanga as the discussion document/submission forms suggest it would – it wouldn’t affect Māori in general, it would simply add a registry for Māori people who have changed their sex marker. Tāne and wahine are already under M and F markers, so more appropriately add a Māori translation to the Non-binary marker, and the Unspecified marker.
Issue 2. Who can be a suitably qualified third party to support applications for children and youth
Anyone over 18 years old, and therefore able to make a legal declaration, who supports the young person’s autonomy to self declare their own gender should be considered a ‘suitably qualified third party’.
We do not believe there needs to be a specific length of time they need to have known the young person. Transgender young people who have a time pressure to amend their birth certificate before they need to produce it, when enrolling in a new school for example, may be unable to achieve this if there is an arbitrary time restriction placed on how long they have know the person willing to support their application.
We do not believe that having a criminal record should stop a person from being able to make a legal declaration of this kind.
Issue 3. Additional requirements for multiple applications
Currently multiple name changes are allowed, requiring only a statutory declaration. In a similar way, there is no need for any additional measures to be put in place regarding changing a sex marker, beyond a legally binding statutory declaration.
Any additional mandatory requirements making this process more complicated than a name change would constitute a significant and unreasonable barrier for transgender people with legitimate reasons to amend their sex marker more than once.
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.
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.
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.
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.
Written submissions are now being processed on the Conversion Practices Prohibition Legislation Bill, and the Inquiry into Supplementary Order Paper 59 on the Births Deaths Marriage Relationships Registration Bill (“BDMRR”). Oral submissions are also being heard on both Bills, by the Justice Committee, and the Governance and Administration Committee, respectively.
Our main work on these Bills has been to support transgender, rainbow, and broader communities, as well as agencies and organisations, to understand the issues for trans people and engage with the submission process.
Firstly, this has included working with researchers to grow the evidence base, so we can clearly see empirical data on what trans people’s lives are like. This has contributed to growing and improving the common understandings of the issues that trans people face under the current laws. We also developed a series of resources on the BDMRR – these have been read over 17,000 times.
Secondly, it involved developing robust recommendations in response to the Bill and SOP, and doing so collaboratively with other organisations – most notably with Rainbow Path, and as part of the Rainbow Support Collective (RSC). We provided our submissions publicly prior to the submission date so people could see where our focus was, and also linked to the Rainbow Path submission which we wholly support. Our BDMRR submission was read over 800 times, and our conversion submission was read more than 1,300 times.
Last of all, we aimed to make it simpler and less intimidating to carry out the administrative part. This included things like our guide to making a submission, letting people know that a short paragraph is absolutely valuable and doesn’t need to be technical, affirming that different perspectives are really useful and they may have thought of things we haven’t thought of, and sharing links to all the papers and where to submit.
We have watched several hours of oral submissions on each Bill, and been both thoroughly impressed and heartened by the range of submissions in support of these two Bills, and the thoughtful and thorough recommendations offered. The level of understanding of the issues has been phenomenal to see, and this is one of our favorite outcomes of this process.
Many trans people who have read or watched these submissions are feeling more understood and supported than they ever have, so we give our deepest gratitude to everyone who submitted in support of these Bills. No matter what happens, you have made a huge difference already.
We have also been impressed by members of the Select Committees, many of whom have displayed a high degree of care and asked considered questions with appropriate gravity for the issues at hand. We appreciate their engagement with the ways these issues affect the lives of rainbow people and their whanau, as well as their broader communities.
There are so many amazing submissions – both written and oral – that we would proudly stand behind. But in the interest of keeping it brief, we’re going to mention just a few favorite moments from the oral submissions. Videos of the oral submissions can be seen below.
It came as no surprise to us that the Māori Women’s Welfare League – which has 175 branches and over 3,000 members – made an excellent submission in support of the BDMRR Bill, and confirmed that the league accepts trans women as women members and always has.
On the conversion Bill, Māori Women’s Welfare League president Prue Kapua said:
“it’s clear from the submissions both in support and opposed to this Bill that there is unanimity in the declaration that conversion practices are harmful and should be banned. There is significant research that supports such a prohibition. “In our view, the definition in Clause 5 is clear that conversion practice involves specific action and that it must be directed toward an individual, with the purpose of changing or suppressing that individuals sexual orientation, or gender identity. It is disingenuous to try to halt the progress of this Bill; on the basis that parental discussions or religious sermons are caught within the definition in Clause 5.
“We have all heard of examples of conversion practices which are aimed at correcting the broken or unacceptable individual, and use shame and coercion as part of the practice. However, should parents or religious people undertake a course of action aimed at suppressing or changing who a person is, they will be liable under this Bill, and that’s how it should be.
She also clarified that from a legal perspective, a practice is a course of action. This means that neither a parent expressing an opinion, nor omission, would be caught in the definition of a conversion practice – as in the case of a parent who is not assisting their child to get puberty blockers.
Kapua said that the Bill is very clear that a conversion practice has to be a practice, has to be directed at an individual, and has to be for the purpose of suppressing or changing that person’s sexual orientation or gender identity.
GMA would add that neglect, or failure to provide essential medical care to one’s child, is in fact covered under other legislation.
National Council of Women
Collectively through organisation members and individual members, the National Council of Women represents 450,000 members. Their existing policy supports equality for people of all genders, including non-binary and intersex people. They noted that they had surveyed their members, and received strong and unanimous support for the conversion Bill.
They also noted that the Bill will contribute to meeting New Zealand’s obligations under the Convention on the elimination of all forms of discrimination against women, and on the convention on the rights of the child.
NCWNZ said that many members wanted to remove Clause 5(2) – the clause which allows for conversion practices in healthcare settings. They acknowledged that most medical bodies have codes of ethics which condemn conversion practices, “however codes are not laws”.
“Research such as Counting Ourselves shows that up to 1 in 6 transgender and non-binary people have been subjected to conversion practices in a by a medical professional”
“We consider that further work needs to be done by the Human Rights Commission working with the health sector to improve gender affirming care and to prevent conversion practices being performed on patients.
They also recommended that the government develop specific legislation to prevent surgeries on intersex children, to ensure their rights under the Human Rights Act and Bill of Rights – which they noted was also recommended by the CEDAW committee.
New Zealand Medical Association
People who have been subjected to conversion practices are twice as likely to attempt suicide, said Alistair Humphrey on behalf of the New Zealand Medical Association, which has over 5,000 members. NZMA said that conversion practices were always harmful, and should never be happening. They recommended replacing “serious harm” with “any harm”.
When asked about youth who are 12 or 13 years old accessing gender affirming healthcare without parental consent, Humphrey replied that the principals which are usually applied are Gillick Competence, and that there are guidelines in New Zealand produced by the NZ Medical Council which give a structured, objective framework for doctors to assess the capability of a young person to make an informed decision for themself.
Vestry Members of St Barnabas Anglican Church, Roseneath
Reverend Cath and other Vestry Members of St Barnabas Anglican Church, Roseneath made a great submission on the Conversion Practices Prohibition Bill.
“Praying for others […] is religious freedom. Praying that god would change that person’s identity is not religious freedom”.
Their submission affirmed that “praying for god’s will to be done” is covered by religious freedom, but assuming that they know better than god and trying to impose their own will on another is not covered by religious freedom.
Other faith based groups which made made powerful arguments in favor of the Bill included The Salvation Army, and St Andrews on The Terrace.
NZ Council for Civil Liberties
NZ Council for Civil Liberties said that the clause allowing conversion practices in a healthcare setting should be removed, or the Bill should have a caveat that treatments must have the intent to affirm and support – as in the Victoria Act.
NZ Council for Civil Liberties also said that the threat of prison may prevent disclosure by young people who don’t want to send their parent to prison, but simply want the conversion practices to stop. Kay Jones, speaking for NZCCL, submitted that survivors of conversion practices would likely be better served by alternative sentences; non-custodial penalties or fines rather than the proposed prison sentence. They also said that prison is ineffective at reform, and that mediation, resolution, and proper support to heal damaged relationships in families should be considered.
Equity New Zealand also spoke of similar recommendations, further recommending fines for institutions and their directors – not only the person who may have been employed to carry out conversion practices.
Written submissions
There are thousands of written submissions on these two Bills, many of which are fantastic and very worth reading.
We did a search of “Gender Minorities Aotearoa” to find our submission on the government website, and were surprised and very touched to see that around 120 submissions from individuals and organisations mentioned that they agreed with our recommendations. Many of them also had additional recommendations and made great arguments on other aspects of the Bills as well.
We are blown away; thank you so much for hearing us, and understanding, and taking action. There is nothing more powerful than a unified movement for social justice and human rights.
This signifies a really important moment for transgender rights in Aotearoa, and one that we will feel the impacts of long into the future.
He aha te mea nui o te ao? He tangata, he tangata, he tangata.
Submission on the Inquiry into Supplementary Order Paper 59 on the Births Deaths Marriage Relationships Registration Bill
We support the intent of this Bill, as amended by Supplementary Order Paper 59. This SOP reflects the preferred option outlined in the Regulatory Impact Statement and its assessment of mana motuhake / Self- determination of sex.
However, as it stands, we believe the SOP does not fully meet its intended aims in making accurate birth certificates accessible for transgender and intersex populations. We recommend the following six amendments.
Permanent residents who were born overseas
Clause 27A of the current Act specifies that anyone who is entitled to be in New Zealand indefinitely under the Immigration Act (2009) is eligible to use the Family Court process to gain legal recognition of their sex.
However removal of the Family Court process, while overall positive, will remove this sole option for permanent residents.
Permanent residents born overseas will no longer be able to go the Family Court to get a Declaration as to Sex, which has their correct sex recorded, based on their gender. This removes two existing rights:
– Permanent residents who were born in other countries that have a gender recognition law (e.g. the UK), used that Declaration as to Sex from the NZ Family Court as evidence to change their birth certificate overseas. They will no longer be able to do that.
– Permanent residents could use this Declaration as to Sex in NZ as proof of their correct sex / gender. This is especially important for people whose overseas passport has their old name and/or sex marker.
This is a backward step for permanent residents, including quota refugees (who arrive here as permanent residents).
Recommendation 01.
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.
Transgender people on a temporary visa
(A) The Bill provides no options for asylum seekers and Convention refugees on temporary visas.
The current legal situation:
– Asylum seekers and Convention refugees on temporary visas cannot change their name in NZ or go to the Family Court to get a Declaration as to Sex.
– Once an asylum seeker is accepted as a Convention refugee, they have the right to live in Aotearoa indefinitely and cannot be deported. New Zealand is their home, and yet they cannot obtain an official document with their correct name and gender.
– The Bill / SOP explicitly excludes them because they were born overseas.
(B) The Bill provides no options for other migrants in NZ on temporary visas.
The current legal situation:
– The existing Family Court process and the Bill both exclude migrants living in New Zealand who are on temporary visas. Some may have lived in New Zealand for a long time.
– Trans people born overseas, particularly trans people of colour, are regularly asked to show their passport to prove their immigration status, including their ability to work or study here. They face significant challenges when they have no New Zealand documentation with a name and sex marker that matches their affirmed gender.
Recommendation 02.
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.
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.
Multiple amendments to sex marker
Clause 22B in the Bill that was referred back from Select Committee included significant restrictions on people’s ability to amend the sex recorded on their birth certificate more than once. The SOP significantly improves the Bill by allowing for multiple changes of a sex marker over time. However new clause 22B(1)(d) signals that additional requirements may be imposed in regulations. It says:
(1) An application by an eligible person for registration of the person’s nominatedsex must— . . . . (d) if the Registrar-General has previously registered a nominated sex forthe person under section 22D, meet any additional requirements set outin regulations;
The Select Committee’s website notes that “The SOP aims to provide better support for the needs of transgender, non-binary, and intersex communities”. It is important that our communities are not only consulted but also resourced to participate fully in discussions about what, if any, additional requirements might be needed in regulations.
The Regulatory Impact Statement and Cabinet Paper suggest that the chief concern for the government as to why people should be restricted from changing their sex marker more than once was to prevent the likelihood of identity fraud. However, the Cabinet Paper makes it clear that a record of sex marker changes will be kept by DIA. Therefore, steps have been taken to mitigate the risk of identity fraud.
The SOP also clarifies in new clause 22B(2) this this requirement “does not apply if the nominated sex is the same as the information relating to sex registered in the person’s original birth record”.
This provision is useful for the small number of people who affirm a transgender identity, and later decide to affirm a cisgender identity again (sometimes called “retransition”). If there are no additional requirements for this group of people, then It is hard to see what rationale there is for developing regulations that require extra steps for other people making their second or subsequent application to amend their sex marker.
A study of 28,000 people showed that 8% of respondents experienced retransition. Of those who did, 62% said that they only did so temporarily, and the most common reason for retransition was pressure from a parent. There were also instances of being pressured to “go back into the closet” by parents, schools, therapists, or faith community leaders. [1]
There are many reasons why someone may wish to amend their sex marker. For some people this includes not feeling it is safe enough to maintain a transgender identity. Regulations should not creates unnecessary barriers for them to re-affirm their transgender identity when it is safe for them to do so.
Others may have wanted a non-binary option on their birth certificate, but the current law has not given them that choice. This means there are likely to be people who chose the second-best option of changing their sex marker from female to male or vice versa, who will now want to amend it to non-binary. They should not be required to meet any additional regulatory requirements simply because the law has finally provided a way for them to accurately self-identify their sex. [2]
Recommendation 03.
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:
– 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
– 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.
Youth access to correct identity documents
Youth aged 16 or 17
The introductory letter to Cabinet of the proposed changes, from the Office of the Minister of Internal Affairs, specified on page 9 that people aged 16 and 17 should be able to make their own application to amend their sex marker, with either the support of their guardian or a qualified third party.
This was also reflected in the Regulatory Impact Statement, which made the same recommendations. This is now reflected in new clause 22B(1)(c) and is a significant improvement on the Bill’s previous requirement which required support from both a legal guardian and a qualified health professional.
This proposed amendment is particularly important for trans people who are rejected by and estranged from their family and recognises the diversity of qualified people that may be providing them with support.
However, as 16 is the age of consent, both for sexual intercourse and for consenting or refusing consent for particular medical procedures, it is difficult to understand why a 16 or 17 year old would need additional consent from either party for a simple administrative update.
Youth aged 15 or younger
Under the proposed SOP transgender children aged 15 or younger would be required to have an application filed on their behalf, with the support of both a legal guardian and a health professional.
It is very common for transgender children and youth to be in the care of guardians who are unsupportive. [3]
The child’s right to an accurate birth certificate must be inclusive of children who are in the care of an unsupportive or discriminatory guardian.
Recommendation 04.
– 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.
Sex categories
The cabinet papers recommended that a range of non-binary sex categories should be available, and that these categories should not be fixed in legislation. They also recommended a consultation process to determine what these categories should be.
The Supplementary Order Paper says:
New clause 22B(1)(a) and new clause 22C(1)(a) enable a person to specify male, female, or any other sex or gender specified in regulations as the person’s nominated sex.
Recommendation 05.
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.
Birthing parents
Clause 11(2) and 11(3)(c), and 12 (3) refer to notice of birth. The language used presumes that a birthing parent is always a woman, when this is not the case.
Recommendation 06.
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’.
Citations:
[1] The Report of the 2015 U.S. Transgender Survey – James, S. E., Herman, J. L., Rankin, S., Keisling, M., Mottet, L., & Anafi, M. (2016). Washington, DC: National Center for Transgender Equality (2015).
[2] Counting Ourselves National Transgender Health Report Aotearoa NZ – Veale J, Byrne J, Tan K, Guy S, Yee A, Nopera T, & Bentham R (2019).
