Show your support for trans and intersex people with our beautiful ”We Belong” transgender flag bunting!
The design includes the transgender flag colours, with yellow stars for intersex. The starts are in the pattern of the Southern Cross constellation, otherwise known as Te Pae Mahutonga. Te pae mahutonga is also a Kaupapa Maori public health framework, based on the constellation, which guides our organisation. You can read about it here. It also carries the transgender symbol, with the words ‘We Belong’.
BDMRR stands for Births, Deaths, Marriages, and Relationships Registration. This is an Act in New Zealand law which sets out the legal aspects and requirements pertaining to the registration of Births, Deaths, Marriages, and Relationships. This includes the legal requirements for birth certificates, including changing the name or gender marker on ones birth certificate, due to marriage, civil union, or being transgender, for example.
What does the BDMRR currently say about trans people changing their birth certificate?
Changing one’s name can be done by a simple statutory declaration, witnessed by a Justice of the Peace. However, the current BDMRRA provisions require medical evidence and a Family Court process in order to change the gender marker on one’s birth certificate.
What’s the problem with the current situation?
The required medical evidence and Family Court process can be difficult, and expensive. It is out of line with the current policy on passports and drivers licenses, which require a simple statutory declaration to change the gender marker on them. It is also out of step with international best practice for human rights.
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, which can be expensive, costing up to $3,000.
The current process 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. They may also not want a particular medical treatment, and may be pressured toward medical intervention in order to obtain accurate identification documents with their correct gender marker.
Why do trans people need to change their birth certificate gender marker, when getting a passport with their correct chosen gender marker is so easy?
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, rather than a passport or other identification. 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.
What would the amendments in the Bill do?
replace a Family Court application with a statutory declaration process that enables takatāpui, trans or non-binary people to affirm and legally document their correct gender
remove any other eligibility requirements, such as the need for medical evidence
enable gender markers to be recognised as male, female, or as a third, non-binary gender, ensuring trans and non-binary people have the same right to legal recognition, and the legal protection that provides, as all non-trans people in New Zealand.
What are the benefits of this?
Meet international human rights standards
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 current BDMRR Act provisions for amending gender markers on birth certificates, developed 23 years ago, are outdated. They have not kept pace with international human rights standards, which set out each person’s right to legal recognition, regardless of age.
The current BDMRR Act does not meet the requirements set out in international case law or recommendations by United Nations bodies that monitor treaties that New Zealand has ratified.
Reduce costs and free up time
Moving from a Family Court process to a statutory declaration will reduce cost barriers for takatāpui, trans, and non-binary people, and their whānau, it would free up the court’s time, and it would reduce the administrative burden on the health professionals who are asked to supply medical evidence for each application.
Support kids to be in school
This would have a significant impact on children live in an area with an unsupportive school, and are currently forced to wear the wrong uniform and use the wrong bathrooms and are called by the wrong gender. These children currently experience extreme distress and often simply leave school regardless of their age.
Support adults to be in employment
It would significantly impact adults who currently have to out themselves to potential employers, and are often then outed to colleagues, resulting in continual uncomfortable questioning, curiosity, and in many cases workplace bullying to the extent that the trans person can no longer work.
Basic privacy and quality of life
Passing the Bill would make an important practical difference for takatāpui, trans, and non-binary people’s daily lives. It would support the privacy of all trans people in other situations where showing a birth certificate is mandatory.
Would passing the bill affect everyone else?
Passing the Bill would have very little impact on non-transgender people. Passports currently use a simple statutory declaration for changing one’s gender marker to M, F, or X, and a passport can be used as proof of identity in most circumstances.
Have other countries passed similar Bills?
Yes. Several other countries have already passed similar legislation.
Ireland – Gender Recognition Bill (2015)
A person over the age of 18 can change their gender by way of a ‘statutory declaration’. A report published in 2017 found 297 trans people had been issued with gender recognition certificates since the bill was updated in 2015.
Malta – Gender Identity, Gender Expression and Sex Characteristics Act (2015)
A person over the age of 16 can change their gender by way of a ‘statutory declaration’.
Norway – Legal Gender Amendment Act (2016)
Any person over the age of 16 can change their gender and name by submitting a short document to the local tax office. Young people between 6 and 16 can access the process if at least one parent consents to it.
Argentina – Gender Identity Law (2012)
A person of any age can change their name and gender if all legal guardians agree. If they don’t all agree, a judge can decide. Persons over the age of 18 can change their name and gender by submitting a document to the National Bureau of Vital Statistics. The law also gives adults access to sex reassignment surgery and hormone therapy as a part of their public or private health care plans.
Portugal – Gender identity law (2018)
A person over the age of 16 can change their gender by making a statutory declaration. The legislation also makes it illegal to perform unnecessary surgery on intersex babies.
Belgium – Legal Gender Recognition Law (2017)
A person from the age of 16 can change their gender by submitting a document to the civil registry. The process includes a three-month waiting period.
The main issues which are sometimes raised, usually by anti-transgender extremists, are framed as concerns for women’s rights. These are based on two false assertions:
that transgender women are inherently men
that transgender women should be considered sexual predators unless proven otherwise, and recognising them as women will increase sexual violence
These positions are against every international human rights organisation, every international human rights treaty, The Human Rights Commission, the National Council of Women, and against transgender people’s experiences of themselves.
There is no credible evidence suggesting elevated levels of sexual violence as a result of similar legislation passing in other countries.
The anti-transgender arguments include
It will mean non-transgender women have less rights
CEDAW (The Convention on the Elimination of all Forms of Discrimination Against Women) firmly affirms that transgender women are protected as a sex class. This right to be protected as a sex class does not detract from any other person’s right to nondiscrimination as a sex class. This is already the case in NZ, the Bill will not change this.
Male privilege
Both international and local research shows that transgender women experience higher rates than non-transgender women of discrimination in education, housing, healthcare, employment, access to justice, legal documentation, higher rates of violence including sexual violence, higher rates of street harassment, and other indicators of a lack of privilege. This is not what male privilege looks like.
Male pattern violence
There is no credible evidence showing that trans women perpetrate violence toward non-transgender women at a higher rate than non-transgender women perpetrate violence against each other.
Women’s prisons
There are currently systems in place to minimise violence, including sexual violence, between prisoners housed together. The Department of Corrections has confirmed that it is prepared to make adjustments to the ways prisoners are housed to ensure the safest conditions possible for all prisoners if the Bill should pass.
Other countries with similar legislation have not reported any negative effect on women prisoners.
Women’s bathrooms/women’s refuges/women only spaces
These do not currently require birth certificates to enter.
Women’s refuges currently do allow transgender women and have done for many years. They have evidence based processes and protections in place to ensure all women who enter are kept safe, and to protect women who, for example, are fleeing violent relationships with other women who may seek to access them in a refuge by deception. No woman can enter a women’s refuge without legitimate need.
Other countries with similar legislation have not reported any rise is sexual violence in women’s spaces as a result of the legislation.
Men will pretend to be trans women in order to enter women’s spaces
There are almost no women’s spaces which require a birth certificate to enter. There are no reported cases of men in New Zealand gaining access to women’s spaces by using the simple statutory declaration process currently available for passports in order to ”game the system” and sexually assault women.
Single sex schools
In Aotearoa, we have many co-ed or mixed gender schools, and students are considered safe attending these. There are currently single gender schools which accept transgender students. International and New Zealand research suggests that it is transgender students who are at risk of bullying and violence in schools.
Collection of data regarding women
The concern is said to be that data about women, for example the gender pay gap, will be skewed and become inaccurate if transgender women are consistently recorded as women.
Given that transgender people all together make up between 1% and 2% of the population, this is unlikely to have much bearing on data about women overall.
There has not been public consultation
The Bill has been through the same public consultation process as any other Bill, including submissions from the public. Many of the anti-transgender campaigners made submissions, as did members of their mostly UK based following. These were in opposition to the Human Rights Commission’s recommendations.
Who is in favor of passing the Bill?
As well as rainbow focused organisations, most other human rights advocates and organisations, womens organisations, and public health organisations, are in favor of passing the Bill, including the United Nations, Public Health Association of New Zealand, Women’s Health Action, Wellington Sexual Abuse HELP, National Council of Women, and the Human Rights Commission.
Ahi Wi-Hongi, National Coordinator, Gender Minorities Aotearoa, Dr Jaimie Veale, Senior Lecturer, School of Psychology, University of Waikato / Te Whare Wānanga o Waikato and President Professional Association for Transgender Health Aotearoa (PATHA), Tom Hamilton, Counselor, OUTLine NZ and project collaborator, re.frame, Jack Byrne, Research Officer, Aotearoa New Zealand Trans and Non-binary Health Survey, 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, Abbi Pritchard Jones, group administrator and facilitator of Genderbridge NZ, Tracee Nelley, President of Agender NZ, Phylesha Brown-Acton, Managing Director of F’INE, Soul Mehlhopt, Co-ordinator of Transcend, Manawatū, Michelle Smeaton, Secretary of Tranzaction, Christchurch, Sharyn Forsyth, Co-ordinator, NZ Parents and Caregivers of Transgender and Gender Diverse Children, Nick Winchester, Mentor / Founder, Kindred, Christchurch, Dr 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, Sally Dellow, Allyson Hamblett, Claudia Mckay, Cathy Parker, Lynda Whitehead, Ally Wilson, Aych McArdle, Joey Macdonald, Griffin Nichol Madill, Laura O’Connell Rapira.
Who is arguing against the Bill?
There are a small number of anti-transgender campaigners, commonly referred to by the softer term ”TERFs” or ”Trans Exclusionary Radical Feminists.” The “Exclusionary” refers to excluding transgender people from human rights protections. They sometimes refer to themselves as ”gender critical feminists” and falsely claim that ”TERF” is a slur. An accurate history of the term TERF can be found here.
Some anti-transgender campaigners have formed an organised campaign against the human rights of transgender people, especially targeting transgender women, under the guise of ”Speaking Up For Women” against the Bill. They are joined by far-right (conservative extremist) groups and fundamentalist faith-based groups in opposing the Bill.
The anti-transgender campaign has involved creating a faux ”Lesbian Alliance” group online, to release statements against transgender women. One anti-trans campaigner dressed as a penis and harassed staff at a gym which allows trans women. Two momentarily crashed a Pride Parade in front of media cameras with a transphobic banner. They have also attempted to have the rainbow suicide prevention organisations for young people – RainbowYOUTH and InsideOUT – defunded. You can read more about their actions here.
The anti-transgender extremists are also known for campaigns against other minority group women. This includes attacking breastfeeding mothers in the ”Free the Nipple” movement, strawman tirades against legal protections for sex workers, and accusing Maori curators at the national museum Te Papa of being ”too colonized to understand” that Te Papa ”doesn’t have proper Maori exhibitions”. You can find some of these rants on this local anti-transgender blog here, if you can stomach it.
Is there any NZ media I can look at, what do other people think?
Yes there is. These discuss the BDMRR and gender markers, from a variety of angles, including the views of key human rights advocates, sexual violence services, and others who support the Bill, and some from the key anti-transgender activists who are coordinating the campaign against the Bill.
NB: this post has been updated 23/02/2019 to add links number 1, 2, and 14
What can I do to help to help pass the Bill?
Get the facts
Understanding how a Bill becomes an Act (a part of the law) can help you to be well informed about what is happening at any stage of the process, and be empowered to act. This post explains the process in a way which is easy to understand for those without a legal background.
If you like to read, there are many feminist and legal theorists, academics, practitioners, and writers in Aotearoa, who are writing on these subjects. These include Sharyn Graham Davies, and Elisabeth McDonald.
You can contact Members of Parliament (MPs) at their offices in the parliamentary complex or at their out-of-Parliament or electorate offices in your area. This page tells you how to find contact details for MPs in your area, and how to address people in Parliament when you correspond with them.
Many trans people are passionate about equality, which can lead them to join community groups, unions, or protests. This pamphlet gives legal information for trans people interacting with Police and the criminal justice system when protesting, if detained, and while being processed within the criminal justice system.
In 2017 we worked with a local anti-war protest group called Peace Action Wellington, to help them clarify the legal rights of transgender protesters interacting with Police. We addressed common questions for trans people, such as ”do I have to give my legal name to Police, if it’s my deadname?” and ”If I’m strip searched, what gender will the Police officer be?”.
You can find the answers to these questions in our booklet ‘Being trans and protesting”.
