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.”
Our rainbow housing network was established in 2017, has over 4,000 members in 2023 and facilitates housing for a huge number of transgender and rainbow people. If you’re looking for a room in an established transgender-friendly home, or if you have a room to offer in yours, visit Rainbow Housing NZ by clicking the button below.
If you would like support to find housing, you can explore some options and access our national transgender housing support service by clicking the button below.
Despite the global pandemic, we had a very successful year across all five of these areas.
We provided 1:1 peer support over 1,300 times, and there were over 500 visits to our Wellington drop in centre. Our website was visited over 61,000 times with 118,000 views.
We made over 4,100 health referrals, and received over 500 referrals from healthcare providers across 9 DHBs. We held a 3DHB community update, and produced 2 health resources.
Our Rainbow Housing NZ group grew to 2,600+ members, we met with the UN Special Rapporteur on Housing, and we published a housing report from our research into homelessness and housing instability in Wellington. We sent Counting Ourselves to key figures at the Ministry of Housing and Urban Development – which then named trans people as a priority group.
Our guide to birth certificate sex marker updates was read over 1,400 times, and we assisted a number of people in making applications. We were also on the BDMRR working group for the Minister of Internal Affairs.
We facilitated connectedness for 1,700 trans people, whānau, and supporters in our online Transgender and Intersex NZ group, we held or significantly participated in 15 community events, our “trans 101” resource was read more than 27,000 times, and our parents resource was read more than 300 times.
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.
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.
We would like to say a big thankyou to Sophie for nominating us, to the amazing communities of Wellington who support us, to our 2021 sponsors Wellington City Council, Tindall Foundation, and the A. W. Newton Bequest, to Wellington Airport and Wellington Community Trust, and most of all to trans folks; who inspire and motivate us to do what we do. Special thanks to the older generations who paved the way, and to the youth who push for change.
