Huge thanks to the NZ Human Rights Commission for their newly released report PRISM.
”Prism explores six human rights issues relating to people with a diverse sexual orientation, gender identity and expression, and sex characteristics in Aotearoa New Zealand.”
It highlights that ”The human rights principle of self-declaration for identity documents is not yet fully implemented; it applies for passport and drivers’ licence records but not for birth certificates.”
The report makes 31 recommendations for resolving the six disparities in human rights for people with diverse sexual orientation, gender identity or expression, or sex characteristics.
SOGIESC stands for Sexual Orientation, Gender Identity and Expression, and Sex Characteristics.
Summary of Findings:
THE RIGHT TO FREEDOM FROM DISCRIMINATION (ARTICLE 2, UDHR)
• The Human Rights Act 1993 does not provide explicit legal protection from discrimination with regards to gender identity, gender expression, or sex characteristics.
• Overt and subtle forms of discrimination are widespread against people with an actual or perceived diverse SOGIESC, and they are more likely to become victims of crime.
THE RIGHT TO INFORMATION (ARTICLE 19, UDHR)
• Unmet information needs are a considerable obstacle for the identification and resolution of issues concerning people with a diverse SOGIESC.
• Data collection does not currently reflect a human rights-based approach. This is particularly clear in response options that limit diverse answers and the ability of SOGIESC-diverse people to be counted.
THE RIGHT TO RECOGNITION BEFORE THE LAW (ARTICLE 16, ICCPR)
• New Zealand’s official identity documents contain sex/gender information which can be difficult to correct for transgender, non-binary, and intersex people.
• The human rights principle of self-declaration for identity documents is not yet fully implemented; it applies for passport and drivers’ licence records but not for birth certificates.
• The current process to amend sex on a birth certificate requires meeting a medical threshold and the involvement of the Family Court, presenting barriers to having a child, enrolling in school, getting married, and other areas of life.
THE RIGHT TO THE HIGHEST ATTAINABLE STANDARD OF HEALTH (ARTICLE 12, ICESCR)
• Surgical interventions not required for the preservation of life continue to be performed on people with diverse sex characteristics before an age at which they can consent to these procedures.
• People with a diverse SOGIESC have poorer physical and mental health outcomes than the general population.
• Healthcare practitioners and providers often lack the training to meet the needs of SOGIESC-diverse service users.
• Gender affirming healthcare is difficult to access and highly dependent on geographical residence.
THE RIGHT TO EDUCATION (ARTICLE 26, UDHR)
• Young people have a right to learn about diversity in SOGIESC. The New Zealand Curriculum allows for such learning within health education, but this is not adequately integrated into practice in schools.
• For youth with a diverse SOGIESC, school is often not a safe environment in which they can thrive and learn.
• Youth with a diverse sexual orientation or gender identity are, respectively, three and four-and-a-half times as likely as other students to be bullied.
THE RIGHT TO WORK (ARTICLE 23, UDHR)
• People with a diverse SOGIESC experience discrimination and bullying in the workplace.
• The most common complaint received by the Human Rights Commission on the ground of sexual orientation is related to discrimination in employment.
• A significant percentage of people with a diverse SOGIESC do not feel safe enough or fear discrimination at work or when applying for jobs. They often conceal their identities or partners for fear of discrimination if these details are disclosed to others in their work environments.
Read the full report here.
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.
