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).
You can find more information about our free transgender IPL club, clinics in other areas, and WINZ funding to help with treatment in other regions below. If you can’t find what you’re looking for, get in touch.
Submission on the Conversion Practices Prohibition Legislation Bill
We support the intent of this Bill, however as it stands we believe it does not fulfill it’s intent to protect transgender populations from conversion practices. The following are our main (though not only) concerns.
Every year we hear the personal stories of a great number of transgender people who have experienced conversion practices in healthcare settings.
They are offered anti-depressants as an alternative to being trans, or told that are simply confused and need counseling, while being referred to a counselor who doesn’t “believe in” being transgender.
Conversion Practices Carried Out in a Healthcare Setting
The Bill states that:
The purpose of this Act is to—
1. prevent harm caused by conversion practices; and 2. promote respectful and open discussions regarding sexuality and gender.
However, in its current state it defines conversion practices as not including conversion practices which are carried out in a healthcare setting. This allows healthcare providers to continue to engage in conversion practices with vulnerable patients, and effectively excludes transgender and intersex people from protection in the setting where they are most likely to experience conversion practices.
In clause 5, the Bill states:
Meaning of conversion practice
(1) In this Act, conversion practice means any practice that—
a) is directed towards an individual because of the individual’s sexual orientation, gender identity, or gender expression; and b) is performed with the intention of changing or suppressing the individual’s sexual orientation, gender identity, or gender expression.
(2) However, conversion practice does not include—
a) a health service provided by a health practitioner in accordance with the practitioner’s scope of practice; or b) assisting an individual who is undergoing, or considering undergoing, a gender transition; or c) assisting an individual to express their gender identity; or d) providing acceptance, support, or understanding of an individual; or e) facilitating an individual’s coping skills, development, or identity exploration, or facilitating social support for the individual; or f) the expression only of a religious principle or belief made to an individual that is not intended to change or suppress the individual’s sexual orientation, gender identity, or gender expression.
The Bill compares this to similar legislation in Australia, however, all the similar exemptions in the Victoria Act are prefaced by the requirement that the practice “is supportive of or affirms a person’s gender identity or sexual orientation”.
This exemption for conversion practices in healthcare settings is not something that was suggested in the Regulatory Impact Assessment (RIA). The RIA only suggested that conversion practices are not common in healthcare settings. While this may be true for gay, lesbian, bisexual, and other sexuality minorities, it is complely contradictory to the available evidence on transgender and intersex populations, including the evidence cited by the RIA.
We need to ensure that this error is not carried through into the legislation and compounded.
Conversion Practices in Healthcare Settings Target Transgender People
The Counting Ourselves (2019) transgender research report found that more than one in six of all participants (17%) reported that a professional, “such as a psychiatrist, psychologist or counsellor”, had tried to stop them being trans or non-binary. A further 12% were not sure if this had happened to them. (p.38).
Researchers asked (p.37) “Have you had any of these things ever happen to you, as a trans or non-binary person, when you were trying to access healthcare? You were discouraged from exploring your gender…” This means that while trying to access healthcare, these transgender people were told that they should stop being transgender. This is conversion therapy, in a healthcare setting.
16% of trans people said yes, they had experienced this. 4% said they had experienced this in the last year. This means 16 out of every 100 transgender people face routine conversion therapy from doctors, therapists, and other professionals in a healthcare setting.
While healthcare practitioners must be able to make medical decisions in the best interest of their patients, that is not what conversion practices are. This Bill should not include exceptions for carrying out conversion practices in healthcare settings.
If we acknowledge that conversion practices are harmful and we want to protect rainbow people from them, we should not exclude transgender people from these protections by allowing their abuse in healthcare settings.
Nothing raised in the Regulatory Impact Assessment suggests that including conversion practices done by healthcare practitioners in the definition of conversion practices would create any issues or further risks.
Conversion Practices in Healthcare Settings Target Diverse Sex Characteristics
The exclusion from the legislation of conversion practices that are directed/performed on the basis of sex characteristics is also unacceptable. While sexual orientation, gender identity, and gender expression are currently protected in the wording of the Bill, the Bill as it stands would allow conversion practices that target people on the basis of their variations of sex characteristics, or that aim to change their sex characteristics. This affects almost all transgender people – whose sex characteristics are not typically associated with people of their gender.
Historically, conversion practices have almost always been targeted at people based on perceived mismatches between their sex characteristics and other aspects of their sexuality and gender. Sex characteristics have often been a specific target of coercive control. It is important that the definition of conversion practices in this Bill encompasses all types of conversion therapy.
It is not necessary to use a narrow framework here: most strong definitions of conversion practices, and indeed most human rights frameworks that intend to protect rainbow communities, such as the Yogyarkata Principles plus 10, and the PRISM report by the Human Rights Commission, do not exclude sex characteristics. This is especially relevant because the Conversion Practices Prohibition Legislation Bill includes an amendment to the Human Rights Act, and therefore the definition of conversion practices in that Act will be based on the language in this Bill, should it become an Act.
If conversion practices on the basis of sex characteristics are not prohibited by this Bill, these harmful practices will continue in Aotearoa.
Nothing raised in the Regulatory Impact Assessment suggests that it would create any risks or issues to include conversion practices on the basis of sex characteristics, or aimed at changing sex characteristics, in the definition of conversion practices.
What Needs to Change
The RIA identified a risk that conversion practitioners may adapt their practice to get around the legislation, while still performing conversion practices. In our professional opinion, this risk applies in healthcare settings. Therefore, it is imperative that the definition of “conversion practices” is robust.
Conversion practices in healthcare settings must be included in this definition, along with the explicit addition of conversion practices on the basis of “sex characteristics” alongside “sexual orientation, gender identity, or gender expression.”
It can be confusing trying to figure out how to access hormone replacement therapy (HRT) in Aotearoa New Zealand, as practices vary between both regions and individual healthcare providers.
Usually, the first step is to get in contact with your sexual health doctor or general practitioner (GP).
If your GP is clinically competent to treat transgender patients, they will usually carry out the screening as below, and prescribe hormones for you. If they don’t know what to do or don’t feel confident to do this, they might refer you to an endocrinologist, or to a psychologist for a readiness assessment before going to an endocrinologist.
It is a common misconception that a psychological assessment and endocrinologist assessment are mandatory, but this is false. Some GPs will choose to require an endocrinologist assessment, and some GPs or endocrinologists will choose to require a psychological assessment, but these are not required by a regulatory body or by law.
You should not be required to undertake any ‘extra assessment’ unless your healthcare provider has reason to believe that you may not have capacity to give your informed consent.
If you are asked to undertake a psychological readiness assessment, this should never be a “mental health screening”, nor a test of your gender, nor ask you invasive questions relating to partners or sexual activity. It should be a simple assessment of your ability to give informed consent. It should aim to determine:
1. If you have mental capacity to make your own healthcare decisions, and 2. If you understand the effects of hormone therapy.
You must have both 1 and 2 in order to give your ‘Informed Consent’.
Endocrinology
An endocrinologist’s job is to test your blood for the levels of certain hormones, and make sure your endocrine system (hormone related system) is safe to receive hormone therapy. A GP can run these tests in most cases, however if you have complex issues or coexisting conditions an endocrinologist may be necessary.
General Health
There are also a few general health conditions which may affect treatment – your GP can assess these general risks. Hormone sensitive cancers may be serious contraindications. Other risk factors can usually be managed and should not prevent hormone treatment.
Further Information
Our guide for patients, Gender affirming hormone treatment, is essential reading for both you and your GP. Other resources are available on our website, such as information on informed consent, recommended doses, and the Guidelines for Gender Affirming Healthcare in Aotearoa (Pages 30 to 37, and appendixes C through F).
You can also download our checklist for clinicians below.
While transgender people make up about 1% of the general population, they make up at least 10% of the autistic population. Some studies suggest 23% or higher.
Studies also suggest that while autistic people make up around 5% of the general population, they make up 13% of the transgender population.
A 2018 study (linked below) shows autistic people’s responses across a range of issues, alongside responses from non-autistic people who have an autistic relative, and the responses of those who are neither autistic nor have autistic relatives (usually professionals who work with autistic people). It is not a representative study, but it is an enormous study by any research standards with over 11,000 respondents from across many different autism forums in several different countries.
1. Autistic respondents preferred the term “autistic person” (52%) rather than “person with autism” (12%). “Both” was selected by 28%, and “neither” was selected by 9%. In contrast, non-autistic respondents strongly preferred “person with autism”.
2. When asked if they identified as LGBT+, 7% of non-autistic respondents answered yes, while 38% of autistic respondents answered yes. 20% of respondents who said they might be autistic answered yes.
3. When asked if they were cisgender (not transgender), 17% of non autistic respondents replied no, while 23% of autistic respondents replied no.
4. There was a major correlation between being non-binary and being autistic.
5. Autistic respondents were more likely than non-autistic respondents to disagree with the statement “I have a religious faith”, and this was especially so for non-binary autistic respondents.
6. When asked if they agreed with the statement “I identify as liberal rather than conservative”, over 42% of autistic respondents strongly agreed, and over 20% agreed..
“Many autistic advocates prefer “identity-first” language (“autistic person” instead of [“person-first” language] “person with autism”). Our disability is part of us, and we don’t want to dance around it. And please — don’t call us “high functioning” or “low functioning.” If you don’t respect our language, you don’t respect us.” – AAPD
Studies have shown that autistic people are less likely to make decisions based on “what everyone else does” and are more likely to make decisions based on pragmatism. They often have a strong sense of fairness and social justice. This may partly explain the liberal (rather than conservative) tendency, and openness to exploring their gender and attractions in non-heteronormative ways.
Visual of the information presented above.Visual of the information presented above.
Autistic young people
7. 84% of autistic respondents disagreed (74% strongly disagreed) with the statement “I am concerned about a link between vaccines and autism” while 62% of non-autistic respondents disagreed (47% strongly).
8. Most autistic respondents said their school didn’t know how to provide for them.
9. Almost half of the autistic respondents who struggled in school did not have an academic learning difficulty.
10. Most autistic respondents were strongly against ABA (Applied Behavioral Analysis therapy) for children.
11. Autistic respondents strongly believed that autism awareness focused too much on children.
While we don’t have data on autistic trans students in Aotearoa, we know that 23% of trans students experience weekly (or more frequent) bullying in schools, while this is experienced by just 5% of their cisgender counterparts. We also know that this bullying is often not addressed appropriately, and not dealt with effectively. There are schools which make it difficult for trans students to attend; including not providing bathrooms, insisting on inappropriate clothing (eg. wrong gender uniforms), and not making school content relevant for them (eg. sex education teaching only about cisgender boys and girls). We also know anecdotally that bullying and accessibility issues are common for autistic young people. We believe there is crossover here.
Applied Behavioral Analysis therapy on children is considered by many to be analogous with conversion therapy. It focuses on teaching autistic people to “not act autistic” through rewards and punishment. It has been alarmingly popular with non-autistic people for a long time, but autistic adults are now speaking out against it.
“The stated end goal of ABA is an autistic child who is ‘indistinguishable from their peers’—an autistic child who can pass as neurotypical. We don’t think that’s an acceptable goal. The end goal of all services, supports, interventions, and therapies an autistic child receives should be to support them in growing up into an autistic adult who is happy, healthy, and living a self-determined life.” – Autistic Self Advocacy Network.
12. 72% of autistic respondents would not take a “cure for autism” if one existed, and 14% said they would. Of non-verbal and selective mute autistic respondents, 75% said they would not take a “cure”, and 12% said they would. 69% of autistic respondents with learning difficulties said they would not take the “cure”, and 16% said they would.
13. 34% of non-autistic respondents said they would not give a “cure” to an autistic relative, and 41% said they would.
14. Respondents who had a positive association with autism – as represented by those who selected “awesomeness” as a characteristic of autism – were much more likely to be anti-cure, to say “autistic person”, and to be autistic (especially if they also had an autistic relative).
15. Almost three quarters of autistic respondents struggled with employment.
16. 75% of autistic respondents felt socially isolated.
Many non-autistic people believe that it would be better if autism didn’t exist. Autistic people disagree. Autistic lives are worth living, just like trans lives are worth living. Stereotypes, prejudices, and discrimination are common, but it is these things – not autism – that autistic people would rather live without.
17. 60% of autistic respondents had an anxiety disorder, 42% had a Sensory Processing Disorder, 40% had depression, and 35% had ADHD, followed by digestive issues at 20%.
18. These conditions were consistently more common for non-binary autistic respondents (anxiety disorder 78%, depression 75%, ADHD 46%, digestive issues 40%). Non-binary autistic respondents had higher rates of Sensory Processing Disorders (56%) and Post Traumatic Stress Disorder (56%).
It is worth noting that male and female respondents were not separated by being transgender or cisgender, so it is possible that all transgender respondents had elevated rates of these conditions.
19. The most common effects of autism for non-binary autistic respondents were sensory issues (91%), anxiety (90%) and enthusiasm for special interests (90%).
Making environments accessible for autistic trans people means not only eliminating transphobia and providing appropriate bathrooms; but considering sensory needs, social stressors, and managing trauma triggers and responses.
20. Respondents were asked about empathy, and options included intense empathy, lack of empathy, both, and neither. Excluding the ‘both’ responses, 58% of autistic respondents ticked ‘intense empathy’, while only 11% ticked ‘lack of empathy’.
Including those who selected ‘both’, 67% had selected intense empathy. Responses were similar across non-verbal autistic respondents and autistic respondents with learning difficulties. Of the non-autistic respondents with an autistic relative, only 22% ticked intense empathy, while 27% ticked lack of empathy, and 47% selected ‘neither’.
Autistic respondents who are both non-verbal and have learning difficulties selected 60% intense empathy, 15% lack of empathy, 14% both, and 11% neither (a total of 74% intense empathy), while respondents who were non-autistic relatives of a non-verbal autistic person with a learning difficulty selected 51% neither, 32% lack of empathy, 13% intense empathy, and 3% both.
Autistic people are vastly more likely to feel intense empathy than a lack of empathy. But non-autistic relatives are likely to believe that they don’t feel intense empathy, and almost a third believe they lack empathy.
Visual of the information presented above.
Visual of the information presented above.
What it means
Autistic transgender people face unique challenges, and high levels of stigma and discrimination. Families, communities, and healthcare providers must be culturally competent and work to unlearn bias against autistic people, and recognise where this bias may affect the ways they interact with the autistic trans people they come into contact with.
GMA has a number of autistic transgender staff, and hears from many dozens of autistic trans people every year, who are struggling to access gender affirming healthcare at a disproportionate rate, and who are struggling with a lack of accessibility and safety in their schools, workplaces, and home environments.
It is common for autistic people to be denied gender affirming healthcare as their gender expression may not be binary, or because they may struggle to express or parents/clinicians may struggle to understand the autistic person’s complex ideas and understandings of gender. They may believe the autistic person is unable to fully understand the consequences of transition – most often due to difficulty with communication, rather than understanding. It is essential that a transgender diagnosis should not be withheld on the basis of a patient being autistic.
Further research is needed on autistic transgender experiences. GMA advocates for more research into autistic adults’ experiences, and for this to be developed by or in collaboration with autistic researchers and autistic populations, including those who are rainbow and transgender.
