Trans, intersex and rainbow community organisations are very disappointed to hear there will be no progress before the election on a Bill that would make it easier for trans and intersex people to amend sex details listed on their birth certificates.
On Tuesday 23 June, the Minister of Internal Affairs confirmed in a media report that there would be no law change this Parliamentary term. Community members are also concerned that a report delivered to the Minister in February 2020 on reducing barriers under the current law is yet to be released.
In February 2019, the Minister of Internal Affairs announced that the Births, Deaths, Marriages and Relationships Registration Bill was deferred. Almost six months later, on 1 August 2019, the Minister announced the appointment of a Working Group to provide her with advice on practical improvements to the current Family Court process.
The Working Group’s role included commissioning the Department of Internal Affairs to conduct interviews with trans and intersex people to hear how to improve people’s interactions with government services involved in the process for amending sex details recorded on birth certificates. Gender Minorities Aotearoa, F’INE, RainbowYOUTH, the Intersex Trust Aotearoa NZ (ITANZ) and other community organisations helped promote these confidential interviews and hosted some in community venues.
“People told us they gave up their time to be interviewed because they wanted to share the barriers they had faced so that the process would improve for other Pasifika people in the future”, said F’INE Director, Phylesha Brown-Acton.
In her media release announcing the Working Group, the Minister identified the financial, time, and dignity barriers trans and intersex people faced under the existing law.
“It is hugely concerning if the Minister has been reported accurately on Tuesday as saying “we don’t need to remove any barriers” and if the only solutions being considered are about providing education within the courts and to trans and intersex communities” said Frances Arns, Executive Director of RainbowYOUTH.
“Trans organisations and community groups have been creating and sharing information about the current Family Court process, both face to face and online, for a long time. And holding community legal clinics”, said Ahi Wi-Hongi, National Coordinator, Gender Minorites Aotearoa. “Education is important but, on its own, is not going to enable more than a small fraction of our community to be able to amend their birth certificates”.
The Aotearoa New Zealand Trans and Non-Binary Health Survey, Counting Ourselves, published in September 2019, found that 83% of participants had the incorrect gender listed on their birth certificate. The most common reason why trans people did not have identification documents with the correct gender marker was because they only had the option of choosing male or female.
“The lack of a non-binary option on birth certificates is an insurmountable barrier for many trans people and requires a law change”, said Counting Ourselves’ principal investigator and University of Waikato Senior Lecturer, Dr Jaimie Veale.
“The Working Group was asked to look at the specific experiences of trans children and their families and of intersex people who want to correct their birth certificate details, ”, said Tabby Besley, Managing Director, InsideOUT. “We need the Working Group’s findings and progress on the Bill to make schools safer for trans and intersex children and youth”.
“The current law requires evidence from medical experts and a court process. This creates a barrier to access for trans people who may not be able to afford a lawyer, especially trans young people”, said Qtopia 2IC, Jennifer Shields.
“Everyone wants trans and intersex young people to grow up among whānau and community who love them and recognise that they are who they say they are,” said Joey Macdonald, Training Lead for Te Ngākau Kahukura. “Young people’s right to an identity is described in the UN Convention on the Rights of the Child. Our current law presents unacceptable barriers to trans and intersex young people amending their official documents to match their identity.”
On 19 June 2020, the Human Rights Commission released Prism, a report and recommendations on human rights issues faced by trans, intersex, and other Rainbow communities in Aotearoa New Zealand.
“The Commission’s report concludes that the current law does not meet New Zealand’s international human rights obligations, because it does not protect trans and intersex people’s rights to self-determination, bodily integrity and non-discrimination”, said OUTLine’s co-chair Moira Clunie. “The passage of the Bill, with improvements recommended by the Commission, will better protect these rights and reflect concerns raised by trans and intersex communities”, said OUTLine co-chair Aych McArdle.
“Intersex people require the freedom of self-determination, bodily autonomy and recognition of their diversity, and this is an inherent right under international law”, said ITANZ Co-President, Dr Rogena Sterling. “Any legal and policy changes regarding official identity documentation must consider the diverse needs of the intersex community in Aotearoa.”
“Aotearoa should be a place where inclusive laws and practices uphold the mana and dignity of takatāpui and LGBTIQ / rainbow people and address the systemic issues that result in discrimination and violence against us,” says Dr Elizabeth Kerekere, Chair of Tīwhanawhana Trust. “We call on the Government to make good on previous assurances of support to our whānau and communities including by supporting the human right of trans, non-binary and intersex people to self-define their identity.”
The human rights issues faced by trans and intersex communities are often invisible. Trans, intersex and rainbow community organisations strongly encourage all political parties to take these issues seriously this election and demonstrate how their policies and actions will meet the human rights obligations set out in the Human Rights Commission’s Prism report.
This statement was drafted by takatāpui, trans and non-binary people and organisations in Aotearoa New Zealand. It explains why it is so important that the Births, Deaths, Marriages and Relationships Registration Act (BDMRRA) 1995 is amended, to bring the process for changing gender markers on birth certificates in line with the existing administrative process used for passports and driver licence records. This proposed change would require takatāpui, trans and non-binary people to sign a legally binding statutory declaration stating their self-defined gender.
Impacts of current provisions
The current BDMRRA provisions require medical evidence and a Family Court process. This impacts most heavily on those who:
– do not undertake medical steps as part of their transition (for financial, medical, religious, or other reasons)
– do not know how to make a formal legal application to the Family Court and/or
– cannot afford to pay a lawyer to apply on their behalf.
This means that the current process privileges those who are well-off, and those with sufficient formal education and English language skills to make such a Family Court application. It excludes those who are poor or on low-incomes, including a higher proportion of Māori and Pasifika members of our communities.
The current process to amend a birth certificate can be lengthy, particularly for those takatāpui, trans and non-binary people waiting for medical evidence to be supplied from a GP, hormone specialist or surgeon. For someone using a lawyer to make the application it is expensive, as a lawyer’s fees can be up to $3,000. The costs of obtaining medical evidence fall on takatāpui, trans or non-binary people themselves, or on parents making applications for their children under section 29 of the BDMRRA. The medical evidence requirements under section 29 are particularly onerous, also encompassing medical treatment that a takatāpui, trans or non-binary child has not yet undergone and which the court may determine is necessary for the child to maintain their gender identity.
The Family Court process, and the medical evidence it requires, prevents or deters many takatāpui, trans or non-binary people in New Zealand from amending their birth certificate. This means it is common for a takatāpui, trans or non-binary person to have a birth certificate that does not match the details on their passport, driver licence record, or other official documents, including school enrolment records. It is difficult for people to navigate everyday life with safety, dignity and privacy, when different identity documents do not match. There is extensive empirical research overseas highlighting that trans and non-binary people are denied services, harassed, or attacked, and have worse mental health outcomes, when their identity documents do not match their gender identity.
It is only fair that that every takatāpui, trans or non-binary person born in Aotearoa should be able to change the gender marker on their birth certificate, through an accessible process. A birth certificate is the only document that someone born here can never have taken away from them. In some significant life events, it is the sole document that will be accepted as proof of identity. For example, the gender marker on a takatāpui, trans or non-binary person’s birth certificate is used on their marriage or civil union certificate, on their child’s birth certificate, and on their death certificate.
New Zealand’s policy for amending gender markers on passports, introduced in December 2012, is often cited as one of the best in the world. In contrast, the BDMRRA provisions for amending gender markers on birth certificates, developed 23 years ago, are outdated. They have not kept pace with international human rights standards, that set out each person’s right to a legal recognition, regardless of age. The BDMRRA provisions do not meet the requirements set out in international case law or recommendations by United Nations bodies that monitor treaties that New Zealand has ratified.
Benefits of amending the BDMRRA
The current review of the BDMRRA is a timely opportunity to update sections 28 (covering adults) and 29 (covering those under the age of 18) so that there is “a quick, transparent, and accessible mechanism that legally recognises and affirms each person’s self-defined gender identity”, with no further eligibility criteria required. This would ensure trans and non-binary people have the same right to legal recognition, and the legal protection that provides, as all other people in New Zealand.
This is a chance to update the BDMRRA to reflect how the New Zealand government already deals with requests from takatāpui, trans and non-binary people to change gender markers on passports and driver licence records. The necessary amendments would:
– replace a Family Court application with a statutory declaration process that enables takatāpui, trans or non-binary people to affirm their self-defined gender identity
– remove any other eligibility requirements, such as the need for medical evidence and
– enable gender markers to be recognised as male, female, or as a third, non-binary gender.
In addition, those aged 16 and 17 should not require parent consent to amend the gender marker on their birth certificate. This reflects that 16 is the threshold for consent, or refusal to consent, to medical treatment in New Zealand.
Moving from a Family Court process to a statutory declaration will reduce cost barriers for takatāpui, trans and non-binary people, including their whānau; free up the court’s time; and reduce the administrative burden on the health professionals who are asked to supply medical evidence for each application.
These changes will have very little impact on the non-transgender community, as a passport can be used as proof of identity in most circumstances. They will have a very significant impact on the takatāpui, trans and non-binary people in those instances where a birth certificate must be shown.
By updating the BDMRRA in this way, New Zealand can make it possible for all takatāpui, trans and non-binary people to be able to afford to amend their birth certificate. This would demonstrate New Zealand’s commitment to international human rights standards and would make an important practical difference for takatāpui, trans and non-binary people’s daily lives.
A statutory declaration model could also be used to enable trans and non-binary people who are seeking asylum, or in New Zealand on temporary visas, to verify their self-defined gender identity and name, when it is impossible for those details to be amended on their original birth certificate or passport.
This statement is endorsed by the following groups, organisations and individuals:
Ahi Wi-Hongi, national coordinator, Gender Minorities Aotearoa.
Abbi Pritchard Jones, group administrator and facilitator, Genderbridge NZ.
Tracee Nelley, President, Agender NZ.
Phylesha Brown-Acton, Managing Director, F’INE.
Soul Mehlhopt, Co-ordinator, Transcend, Manawatū.
Michelle Smeaton, Secretary, Tranzaction, Christchurch.
Dr Jaimie Veale, Senior Lecturer, School of Psychology, University of Waikato / Te Whare Wānanga o Waikato.
Tom Hamilton, Counsellor, OUTLine NZ and project collaborator, re.frame.
Jack Byrne, Research Officer, Aotearoa New Zealand Trans and Non-binary Health Survey.
Sharyn Forsyth, Co-ordinator, NZ Parents and Caregivers of Transgender and Gender Diverse Children.
Nick Winchester, Mentor / Founder, Kindred, Christchurch.
Elizabeth Kerekere and Kevin Haunui, Chair and Deputy Chair, Tīwhanawhana Trust.
Duncan Matthews, Manager, OutLine NZ Inc.
Frances Arns, Chief Executive, RainbowYOUTH.
Tabby Besley, National Co-ordinator, InsideOUT.
Jem Traylen, Trans Secretariat/Board Member, Rainbow Wellington.
Jevon Wright, Treasurer, OuterSpaces Charitable Trust, Wellington.
Amanda Ashley, Founder, Rodney Area Rainbow LGBTQ+.
Warren Lindberg, Chief Executive Officer, Public Health Association of New Zealand.
George Parker, Strategic Advisor, Women’s Health Action.
Conor Twyford, Chief Executive / Kaiwhakahaere, Wellington Sexual Abuse HELP.
Richard Tankersley, the Uprising Trust, Christchurch and former Human Rights Commissioner.
Rosslyn Noonan, former Chief Human Rights Commissioner.
Dame Margaret Sparrow.
Dame Catherine Healy, National Coordinator, New Zealand Prostitutes’ Collective.
Professor Elizabeth McDonald MNZM, School of Law, University of Canterbury.
Griffin Nichol Madill.
Laura O’Connell Rapira.