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 nominated sex must—
. . . . (d) if the Registrar-General has previously registered a nominated sex for the person under section 22D, meet any additional requirements set out in 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).
[3] The Youth19 Rangatahi Smart Survey (Youth19) Report – Fleming, T., Peiris-John, R., Crengle, S., Archer, D., Sutcliffe, K., Lewycka, S., & Clark, T (2020).
Download our submission
Supplementary Order Paper – with the amendments we are submitting on
This is the Bill. Make sure your submission related to this version, not the old version.
Submit – this is where to upload your submission
General advice
Rainbow Path
The folks at Rainbow Path helped us out immensely, and we think you should check out their submission too.
This guide is intended as an update on the BDMRR Bill, and covers the important opportunity in August/September to make final submissions on the Bill.
In August we expect the Select Committee will call for submissions on the most recent changes to the Bill. These changes will be explained in a Supplementary Order Paper. We know from the documents that the Minister released in July what those changes will cover and have explained them below. Submissions are likely to be open for about 6 weeks from early August 2021.
GMA has a primer which covers the background of the Bill, and many of the issues and arguments surrounding it. We recommend that you first read the primer, available here.
Making a submission
Below is a summary of the Cabinet Paper and other briefings to the Minister, including the Regulatory Impact Statement. These were released in July 2021 (though they are dated 14 June on the Department of Internal Affairs’ website). These documents show strong support within the Government in favor of passing the Bill. The full documents are available below. The parliamentary papers can also be found under the heading “Ministers’ Papers – Internal Affairs”, dated June 14th 2021, here.
Submissions can be made in writing and sent by post, or submitted online via the Parliament website, here. It is also possible to present your written submission orally (face to face, by phone, or by video conference), which can make a stronger impression. If possible, it is usually a good idea to both send your written submission and present your submission orally. We strongly urge you to see our guide to writing a submission below.
The select committee process is an opportunity for the public to have a say in the final wording of the Bill, and attempt to ensure that the best possible version of the Bill makes it through the process. Once the Bill is finalised, it will have a third reading, where Members of Parliament will vote on whether it gets passed into law.
Both your views and recommendations, along with personal stories, are important. It is personal stories which capture the hearts and minds of those you speak with. While it may be tempting to refute the harmful and false claims being made by anti-trans campaign groups, the strongest position is to speak from the heart to personal experiences, and the positive impact that passing the Bill will have on yourself or someone you care about.
Who to talk with
Both the Labour Party and the Green Party are currently in favour of the Bill, which provides a strong basis for passing the Bill into law.
The National Party does not yet have an official position on the Bill. They will debate the Bill internally, within their caucus. It is very important that National Party Members of Parliament hear the views of transgender people and our allies, prior to and during the select committee process.
GMA recommends talking with or writing to National Party Members of Parliament Nicola Willis and Chris Bishop, who may be the most likely to support the Bill within the National caucus. We also recommend talking with Simon O’Connor (MP for Tāmaki, National Party associate spokesperson for social housing and social development), and Nicola Grigg (MP for Selwyn and National Party spokesperson for women).
We recommend sharing your stories with each of these Members of Parliament, your local MP, and members of the Select Committee.
Select Committee members will include:
Barbara Kuriger – Chair, National Party MP for Taranaki-King Country.
Tangi Utukere – Co-chair, Labour Party MP for Palmerston North.
Rachel Boyack – Labour Party MP for Nelson.
Naisi Chen – Labour Party list MP.
Nicola Grigg – National Party MP for Selwyn.
In particular, Nicola Grigg and Barbara Kuriger are important MPs to reach. They represent rural communities, and will likely respond best to messaging about common sense values, evidence based policy, supporting women, opportunities for youth to move into leadership, cutting bureaucratic red tape, stronger community networks, and supporting families. They will also respond more strongly if people within their electorates make appointments with their electorate offices to meet them in person.
Areas of Focus
Please note that you do not need to speak about every focus area. Organise with friends and cover one area each. A sound argument for one point is likely to be more effective than touching on all of them. Your entire submission should ideally be no longer than 2 pages.
The BDMRR Primer (linked above) contains other points which you may be interested in submitting on. The focus areas below are high priority for us.
Young people aged 15 or younger
The government proposes that youth aged 16 or 17 would be able to make the application themself, and need either the support of a guardian or support from a qualified third person.
However, under the current wording, applicants aged 15 and younger need to have a guardian make the application on their behalf, and also require a letter of support from a qualified third person.
This discriminates against youth aged 15 or younger who may have unsupportive or transphobic guardians. It would make it impossible for them to change their sex marker in situations where their legal guardian/s refuse to make the application.
The Bill should give transgender people aged 15 and younger an alternative option, allowing them to demonstrate their ability to make an informed decision, with support from either a qualified third person, or a guardian.
Trans people without NZ birth certificates
It is important that submissions do not conflate the experiences of all people born overseas; for example, by making generalised statements about “trans migrants, refugees and asylum seekers”. There are differences between the experiences and legal barriers faced by each of these groups; for example, based on their immigration status and whether they are able to achieve any form of legal gender recognition in their country of nationality.
GMA has worked together with Rainbow Path to make it as easy as possible to understand these differences, as outlined in the following 3 sections below.
Groups such as Rainbow Path provide important opportunities to listen to the diverse experiences of those who are directly affected by gaps in current laws and policies, and their recommendations. Some recommendations are within the scope of this Bill, while others require further changes to immigration laws and policies. If you are not sure what the solutions are, it is still valuable to mention the legal gender recognition gaps that need to be addressed.
1. Removing existing rights for permanent residents born overseas
The Bill replaces the current Family Court process with a simple statutory declaration. For most people that is a very positive step. However, the Government has taken a backward step for permanent residents who were born overseas.
In 2008, after a recommendation in the Human Rights Commission’s Transgender Inquiry report, the law changed so that at least the first step in the Family Court process (obtaining a Declaration as to Sex) became available to permanent residents. With trans people no longer needing to go to the Family Court, that sole option for permanent residents has been removed. As currently worded, the Bill is restricted to people whose birth was registered in New Zealand (including children adopted from overseas).
A solution must be found to ensure that transgender and intersex New Zealand permanent residents born overseas do not lose the right to an official document that accurately recognises their affirmed sex. This includes quota refugees who are granted permanent residence as soon as they arrive in New Zealand. This solution should be an administrative process based on self-determination (self-identification), to be consistent with the changes the Bill is making for other trans people in Aotearoa.
2. No options for migrants on temporary visas
The existing Family Court process and the Bill as currently drafted 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.
3. Asylum seekers and Convention refugees on temporary visas
Rainbow Path is an advocacy and peer support group for the rights of Rainbow refugees and asylum seekers living in Aotearoa New Zealand. They have been lobbying since 2018 on the need for asylum seekers and Convention refugees to be able to obtain official documentation with their correct name and gender marker. Without such documents, they face immense barriers trying to access basic fundamental services, and potential danger every time they use outdated ID from their country of nationality.
Currently, only permanent residents can amend their name in New Zealand. They are also excluded from the current Family Court process to get a Declaration as to Sex because they are not permanent residents. It may take asylum seekers many years to find out if they are accepted as Convention refugees. Even then, they have no way to change their name until they can eventually afford to apply for, and are granted, permanent residence. This process can take multiple years. 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.
Rainbow Path has emphasised that official documents must not include the transgender person’s original name or sex marker or in any other way disclose that they are transgender. Doing so would pose significant safety risks for those fleeing persecution for being transgender, including for partners or family members overseas. This is why a document like a name change certificate is not a suitable option for transgender refugees and asylum seekers to use on its own to verify their identity.
Rainbow Path is lobbying for trans asylum seekers and Convention refugees to be able to get their correct name and gender on the certificates of identity and refugee travel documents issued by the Department of Internal Affairs and Immigration NZ.
The Office of Ethnic Communities in Auckland wants to reach out to trans and rainbow people, and is holding a hui tomorrow (Thursday 4th Feb 2021). Below is an invitation from them.
Tēnā koe, नमस्ते, Ni Sa Bula Vinaka, こんにちは, 你好, As-Salam-u-Alaikum, Ram Ram.
The Office of Ethnic Communities (OEC) invites you to attend our Community Connection Hui for Rainbow and Ethnic Communities.
This is an opportunity for OEC to build our relationship with people in the queer and ethnic community and introduce the work that we do. OEC currently does not have a significant connection with queer ethnic communities, and we want to change that. We will also take this opportunity to introduce the Ethnic Community Development Fund, a 4.2 million dollar fund available for our mandated communities.
Event details are as follows:
Community Connection Hui for Rainbow and Ethnic Communities
Thursday 4 February 2021
Studio One – Toi Tū, 1 Ponsonby Road, Grey Lynn, Auckland 1011
7:00 pm – 8.30 pm
RSVP – Please let us know if you are able to attend by contacting stella.hodgson@dia.govt.nz by Tuesday 2 February 2021. (they sent it to us today so there’s still time for late RSVP we imagine)
Refreshments will be provided.
We hope you are able to attend and we look forward to seeing you there. Please note, RSVP is essential due to number restrictions at the venue. The location is accessible by public transport. Alternatively, street parking may be available in the vicinity, and a few paid parking buildings are located at a few minutes’ walk.
