NZ Sex and Gender Statistical Standard Submissions

NZ Sex and Gender Statistical Standard Submissions

In a historic moment, Statistics NZ announced their plans to count all people in NZ, regardless of gender, in the next census.  A separate but related document, the NZ Statistical Standard for Sex and Gender, is currently under review, and Statistics NZ has called for public submissions on their proposed changes to the statistical standard, which are open until August 13th 2020.

In short, we are calling for trans people and our allies to make a submission in support of the following proposed changes to the NZ Statistical Standard for Sex and Gender.

Key Points

  • The proposed gender definition.
  • Adding “Another gender” as a response to this gender question.
  • It should be made explicitly clear that the proposed ‘2 step method’ of asking gender as well as sex assigned at birth is only appropriate in extremely limited circumstances, such as national population surveys (explained further in the example submission below), AND must always use the framing of ‘sex assigned at birth’.
  • An intersex variation question should be used when intersex population data is required, in addition to sex and gender questions, again in extremely limited circumstances.
  • SNZ must clarify that the only question that should be asked in most surveys and any individual applications is a person’s gender. (Although GMA notes that in many instances of individual information collection – rather than studies and research – this information does not need to be collected at all).

Further information

Formerly, the census question on gender asked ”Are you: Male [] Female []”. Statistics NZ is proposing that a gender question should have a third option added, ”Another Gender []”. This  would provide a way of counting all people whose gender is a cultural one, any form of non-binary gender, or any other gender that is not covered by the male/female binary. Statistics NZ is proposing that most surveys and forms only ever ask for people’s self-defined gender. They are calling this ‘gender by default’.

Statistics NZ is proposing that there are only very limited times when this data is needed. One of these is when we need to compare the experiences of trans people overall against the general population, or in comparison with cisgender people’s experiences. So, in anonymous surveys, they are proposing this a new question  ”What was your sex at birth?” [note we strongly suggest this is changed to ‘sex assigned at birth].

Statistics NZ is proposing that a sex at birth question is never asked on its own. The only time it would be asked is together with a gender question, in limited circumstances where  it is necessary to compare the experiences of transgender people overall against those of cisgender people. Having a gender question and a sex (assigned) at birth question together is called the ‘2 step’ method. 

In the consultation document Statistics NZ  explain why they aren’t simply asking ‘’are you transgender?’’. This includes that any single term like ‘transgender’ gets outdated and could exclude many people who don’t use that specific term. For example, this might include some non-binary people, some who consider themselves transsexual and not transgender, some takatāpui, and some people who consider themselves full time drag queens, and those who don’t feel ‘’trans enough’’ to call themselves trans, and those who may be confused about whether they should tick male or female alongside transgender to show they are, for example, a trans man. It is also challenging to design a question using identity terms that is understood by the broad range of trans people and cisgender people of all ages who fill out the census and other official surveys. 

‘Are you transgender?’ would also tell us less about the trans people who do answer the question. In particular, if someone says their gender is “another gender” and that they are trans, there is no way of knowing whether they were AMAB or AFAB. That reduces the information our communities will have about the different needs of those two non-binary populations.

 Some trans people are concerned that the question ”What was your sex at birth?” sounds very similar to ”What is your biological sex?’. We e share this concern and prefer a question asking ”What was the sex assigned to you at birth?” – we will be giving Statistics NZ that feedback. But, we also recognise there is a difference between ”your sex at birth” and ”your biological sex”. This distinction is very important, for the following reasons. 

Understanding sex classifications

Each person’s sex characteristics include their chromosomes, hormone patterns, gonads (reproductive organs) and genitals. These are all parts of a person’s physical or biological makeup but are not what are used when someone’s sex is assigned at birth and recorded on their birth certificate. Most people have never had their DNA measured, and many trans people have changed their hormonal balance and potentially other aspects of their sex characteristics through gender affirming medical treatments. A person’s sex recorded at birth is typically based on looking at only one part of the infant’s “sex characteristics” – their external genitalia, and is assigned to them based on this imprecise measure.

While  ‘sex at birth’ implies that there is an accurate process behind the assignment of sex, this is far from the truth.

It is scientifically inaccurate to assume that all people can be defined as male or female based on their sex characteristics or that sex characteristics cannot change over time. Such assumptions fail to recognise the diversity of the sex characteristics that intersex people are born with, or the biological and physiological sec characteristic differences trans people experience through gender affirming medical treatments. 

Using the term ‘biological sex’ to describe the sex recorded when we are born inaccurately assumes that everyone’s sex is clearly male or female at birth and never changes. Using the term ‘sex assigned at birth’ clarifies this.

When trans and intersex people are not counted accurately, it is difficult and, in some cases, impossible to advocate for our rights. We need to have accurate data so that funding and resources are allocated to meet the size of our population and the  needs of different parts of our communities. For example, until recently, it was thought that there were many more trans women than trans men in Aotearoa, and we had no data on non-binary numbers. This led to different levels of genital reconstruction surgery funding for trans women and trans men, and particulardifficulties for non-binary people trying to to access gender affirming medical care. We now know that the largest trans group in Aotearoa is actually non-binary people, but we need to know whether they are AFAB or AMAB, and whether this makes a difference to their life circumstances, and in what ways [ Counting Ourselves, 2019] 

Some international data tells us that, for example, the employment discrimination that trans men face reduces if they  have access to and choose to take hormones and have top surgeries and are read as cisgender men, while trans women are more likely to continue to experience high levels of  employment discrimination. Asking a gender and a sex assigned at birth question in official surveys could help us find out if that’s also the situation here, and whether access to gender affirming healthcare early in life could prevent such discrimination in the longrun for trans women as well [IZA World of Labor]

Local data is very important for understanding what policies and laws need to change and which services are needed by whom. There is no government data on this, so having a two step question in the census and other official population surveys is very important. Together they increase our potential ability to understand all forms of gender-based discrimination and violence by distinguishing  between the experiences of trans women, trans men, non-binary people (both those AMAB and those AFAB), cisgender women, and cisgender men, as well as intersex people – who may fall into any of these categories additionally.

We are also aware that the terms sex and gender are used interchangeably across many government agencies. We don’t feel a need to distinguish between the terms in situations where it is clear that people are able to make a response that matches their self-defined identity, whether that identity is trans, cis, intersex, both, or any other term. Having a more specific ‘sex assigned at birth’ question clarifies the distinction that sometimes needs to be made to measure the transgender and cisgender populations. 

Further Implications

The anti-trans campaign group ‘Speak up for Women NZ’ has a coordinated campaign with support from many international anti-trans campaigners and far right political and faith based groups. It is usual for groups such as these to organise a great number of international submissions, which pretend to be from NZ. This is a well-documented tactic of far right groups. The anti-trans extremist movement is small but well networked across different countries. They aim to focus on a particular country to block laws and policies that respect trans rights.

Part of how they do this is to push for ‘equal but separate’ and promote options that are based on the idea that “biological sex” is an immutable category from the time it is assigned, in order to exclude trans people – with a focus on trans women – from human rights. Some examples of their tactics in NZ include contacting schools to stop transgender from being included in sex education classes, and campaigning against the BDMRR bill which intends to allow transgender people to change the sex on their birth certificate without the current requirement of ‘permanent medical changes’. Each time they are successful, these campaigns are referenced and used politically by other countries. 

It is vital that trans people and our allies make submissions, and present a unified voice where possible. 

Have your say

Read the proposed changes and make a submission. You can read the full document, including the info sheet on how to fill the form, and make a submission here [link]. Your submission can be as short or long as you like, and doesn’t have to cover everything. The submissions close at 5pm on Thursday 13 August 2020.

Example Submission

Example submission based on recent discussions among trans people. This includes the relevant questions from the consultation document.

Q7. Gender by default principle  

 To what extent do you agree or disagree with the gender by default principle in the proposed standard?
a. Strongly agree  b. Agree c. Neutral d. Disagree e. Strongly disagree
For details see Proposed solution – ‘gender by default’ principle.

Q8. Please explain the reason for your rating:

Statistics New Zealand (SNZ) proposes that the ‘gender by default’ principle is adopted in the updated standard. This is an approach that defaults to the use of gender data as opposed to sex assigned at birth. Collection of sex assigned at birth information should be viewed as an exception. Rare occasions where you might need this are for identifying the size of the trans population in population-based surveys or when this might be useful for trans people’s health. We support this principle, because it respects people’s dignity and right to self-determination. In almost all cases, a person’s gender – their social and personal identity based on lived experience – is most relevant for data collection purposes. Having a person’s ‘biological sex’ or sex assigned at birth as the default in data collection causes harm to trans people and also makes it impossible for non-binary people to be counted in official statistics.

We believe that in many cases in Aotearoa New Zealand people are asked about their gender when it’s not at all clear why this information is needed. In some situations, such as with banks and other organisations which require security, collecting data on gender creates additional barriers for trans people whilst only providing minimal added security. We agree with SNZ that people should carefully consider whether they even need to collect gender data.

We believe that SNZ should provide guidance about removing sex data in admin records when we move to gender as the default. We are aware this is a problem in places such as schools where gender data is already collected by default, but because school databases require proof of New Zealand residence, sex details on birth certificates are also routinely collected and have become the default.

Q9. ‘Gender’ concept definition 

 To what extent do you agree or disagree with the proposed definition for gender? 
a. Strongly agree b. Agree c. Neutral d. Disagree e. Strongly disagree 
For details see Proposed solution – an overarching concept of ‘gender’. 

 Q10. Please explain the reason for your rating:

SNZ proposes the following gender definition:  ‘Gender refers to a person’s social and personal identity as male, female, or another gender such as non-binary. Gender may include how a person describes themselves (‘gender identity’), and/or the gender a person publicly expresses (‘gender expression’) in their daily life. A person’s current gender may differ from the sex recorded at their birth and may differ from what is indicated on their current legal documents. A person’s gender may change over time. Some people may not identify with any gender.’ 

We agree with this definition in that it includes trans men in the category of “men” and trans women in the category of “women” and welcome that it allows for more that two genders and notes that gender may change over time and some people might have no gender.

We would also prefer that this definition emphasised that everyone has the right to self-define their gender (without any need to undergo medical, legal or other coercive steps). 

Q11. Another gender 

To what extent do you agree or disagree with the use of ‘Another gender’ in the standard? 
a. Strongly agree b. Agree c. Neutral d. Disagree e. Strongly disagree 
For details see: Proposed solution – ‘another gender’ in gender question. 

 Q12. Please explain the reason for your rating:

We agree that SNZ’s proposed term ‘another gender’ is more accurate than the previous ‘gender diverse’ term. We are concerned that ‘another gender’ might be ‘othering’ of those people who are not male or female. The gender concept definition recognises “some people may not identify with any gender”.  SNZ should consider whether to clarify in guidance whether ‘agender’ and ‘genderqueer’ (or people who don’t identify with any named gender) would be included under the ‘Other gender’ option.  

Q13. Two-step method 

 To what extent to you agree or disagree with use of the two-step method in the standard? 
1. Strongly agree 2. Agree 3. Neutral 4. Disagree 5. Strongly disagree 
For details see Proposed solution – two-step method for identifying transgender and cisgender populations. Sex and gender identity statistical standards: Consultation 

 Q14. Please explain the reason for your rating:

We agree with the use of the two-step method in the updated standard. 

This involves asking a question about sex assigned at birth, combined with a question on gender. The two-step approach is considered best practice for use in population representative data collections, where reflecting the transgender population is required. It is also the approach implemented by Statistics Canada in some of their surveys. 

The SNZ consultation document notes a trans status question as an alternative to the two-step method. We agree that including a trans/cisgender status question is appropriate because we believe that for most data collection, using this question is more appropriate than the two-step method. The discussion document already notes that the wording of a trans status question may not be inclusive of all people, and we note that it may not reveal data on intersex people, some of whom are transgender and some of whom are not.

We believe that SNZ should consider whether a trans/cisgender status question should include the option for people to identify as cisgender, to make it consistent with other demographic questions which name the majority group (e.g., ‘straight/heterosexual’, ‘Pākehā’). This would help to build knowledge about the word cisgender and help cisgender people to be able to reflect on their own experiences and how they differ to trans people and help trans people to feel less like an anomaly. We are not aware of any previous use of a question like this and we note that this would require the term ‘cisgender’ to be explained in the guidance notes.

We believe SNZ should provide guidance about what the pros and cons of a trans/cisgender status question instead of the two-step method if we need to identify if somebody is trans or cisgender. For example, a question about trans/cisgender status should be most appropriate for most demographic data collection purposes, but a two-step method would be more appropriate for research on the demand for gender affirming healthcare. 

Q15. ‘Sex at birth’ concept definition 

To what extent do you agree or disagree with use of the sex at birth concept in the standard? 
a. Strongly agree b. Agree c. Neutral d. Disagree e. Strongly disagree 
For details see Ambiguity in the current sex standard. 

 Q16. Please explain the reason for your rating:

SNZ proposes introducing a specific definition and question module based on ‘sex at birth’ for use in surveys, used solely in the two-step method (where identifying trans populations is required). Sex at birth refers to the sex assigned to and recorded at a person’s birth (e.g. recorded on their original birth certificate). 

This proposal improves the current sex concept definition which is binary, focused on biological sex and outdated, i.e.: “the distinction between males and females based on the biological differences in sexual [sic] characteristics”.

While we are aware of international evidence, mostly from North America, that the two-step method is a useful way of identifying the trans population, we note that most of that evidence has been collected from a question that asks about sex assigned at birth. We believe that from a transgender community perspective, the most appropriate wording would be “sex assigned at birth”; this is the commonly used phrase used in transgender communities because it names the coercive social process that we experience from other people and our society. We believe that other phrases like “sex at birth” and “sex recorded at birth” are too neutral and they do not name this harm. Official identification documents, primarily birth certificates, are one of the primary tools used for assigning sex at birth and coercively enforcing binary genders. Many trans and intersex organisations and human rights bodies are increasingly advocating that registration of sex and gender in identity documents should cease. 

We are also very concerned that the phrases “sex at birth” and “biological sex” reinforce transphobic arguments that this is a person’s ‘original’ or ‘true’ sex. We note that everybody is assigned a sex, usually based on a cursory physical examination at birth.

Similarly, we would prefer that the proposed SNZ definition of gender noted that transgender people include those whose gender is different from their ‘sex assigned at birth’ rather than their ‘sex recorded at birth’ (this is discussed further below). 

We are aware that many trans people find it difficult or upsetting to be asked about their sex assigned at birth. However, many trans people also understand that this is sometimes necessary when there’s a clear need to ask this. We believe that SNZ should make it clear that if an agency or organisation wants to a person about their sex assigned at birth, they must only do this when the reasons are clearly justified, such as accurately representing the size of the trans population in a population-based survey, or for understanding the number of trans people who were assigned male at birth or assigned female at birth for healthcare access reasons. SNZ should clearly note that when collecting information about an individual for individual purposes (not nationally representative data collection), a transgender status question is more appropriate eg. ‘are you transgender?’. This could be done by adding another step in the guidance diagram saying “do you need to accurately count the size of the transgender population in a population-based survey and differentiate between transmasculine people (who were assigned female at birth) from transfeminine people (who were assigned male at birth)”; this guidance should also stress the very limited times when that might be useful, and that it is unnecessarily invasive to ask this in almost all circumstances.

Many trans people will not want to disclose their sex assigned at birth. Any medical information about a person being transgender should be treated with confidentiality. Trans people have the right to choose whether to disclose this information, to access any such information held by others, and to place restrictions on who else can access this information.

In clinical settings, this is clinical information which should never be default information collected in a patient’s administrative records. Patients’ administrative records should be based on a person’s self-defined gender.

It would be unacceptable for sex at birth to become the default option, regardless of how this was defined.

We believe that SNZ should provide guidance that a sex assigned at birth question is voluntary, and information is given about the ways that the anonymised data collected from this in SNZ surveys can be used. 

 Q17. Intersex information needs 

To what extent do you agree or disagree that this approach will meet information needs for the intersex population? 
1. Strongly agree 2. Agree 3. Neutral 4. Disagree 5. Strongly disagree 
For details see Collection of intersex population data is complex. 

 Q18. Please explain the reason for your rating:

We propose adoption of an intersex variation question where intersex population data is required. 

Where intersex population data is required, international best practice is to use a separate question asking whether a person was born with an intersex variation. 

Q19. Further information we might  like to share –  

Is there any other information you would like to share to assist us in the review of these standards?

Based on this human rights approach, Statistics NZ should ensure that the expert advisory group convened to provide input to the consultation document also reviews the process used to analyse the feedback received. We encourage broadening the membership of that group to include Gender Minorities Aotearoa, to ensure more trans women and takatāpui participation. We note that Gender Minorities Aotearoa is the organisation with the highest number of transgender and intersex engagements across the country. It is important that there remains an ongoing process for consultation between trans, intersex and other Rainbow communities and SNZ. 

We also suggest that SNZ undertake work toward meaningful integration of Te Tiriti o Waitangi in the sex and gender data collection standards. For example, having separate standards for sex, gender, and sexuality seems to align most closely with Pākehā understandings of these concepts. We believe that it is important for people to have the option to endorse terms and personhood concepts that are from the tangata whenua of Aotearoa.  

It may be more appropriate for Aotearoa to develop identity standards and classifications that recognise there are culturally specific Māori, as well as Pasifika, identities and terms that convey a mix of gender and/or sexual diversity. We are aware that members of the kaupapa Māori rainbow organisation Tīwhananwhana Trust – which advocates for takatāpui – have shared some cultural touchpoints for this current review, specifically; tātau tātau and kōtahitanga for collective inclusivity, motuhake for uniqueness, tino rangatiratanga the power to choose, manaakitanga enhancing the process of assistance – or what GMA would consider ‘uplifting the humanity’ of trans people, aroha – empathy and compassion, mana as individual and collective prestige (in this context). These cultural touchpoints are crucial for this work and a broader review of these and other standards and classifications so that they are appropriate for Aotearoa New Zealand. 

Read the full document and info sheet and make a submission here [link]

Trans and intersex communities call for law change and release of Working Group’s Report

Trans and intersex communities call for law change and release of Working Group’s Report

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. 

BDMRRA Birth Certificates – Rainbow Community Statement

BDMRRA Birth Certificates – Rainbow Community Statement


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.
Sally Dellow.
Allyson Hamblett.
Claudia Mckay.
Cathy Parker.
Lynda Whitehead.
Ally Wilson.
Aych McArdle.
Joey Macdonald.
Griffin Nichol Madill.
Laura O’Connell Rapira.

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