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 alwaysuse 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.
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]
Our key points included that one in five trans people experiences homelessness at some point during their lifetime, 19% overall, or 25% of non-European trans people. Of course the rates are higher for Maori trans people, disabled trans people, etc.
Primarily this looks like attempting to rent through private landlords or property managers and being declined (though it is not usually stated that being trans is the reason for this, the statistics speak for themselves).
Part of the issue is that the housing market is unregulated – meaning that property investors can own as many properties as they like and charge as much as they like in rent fees. This creates undue competition for low income housing, as there are very few decent houses which are rented at affordable rates for those with low income.
As trans people experience high rates of discrimination across all areas of life, including education and employment, the median income of trans people is half the median income of the general population., so a lack of low income housing affects trans people disproportionately, even before we factor in housing discrimination toward trans people.
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Trans people simply don’t have a chance.
– Ahi Wi-Hongi, National Coordinator . .
The other key issue we raised was that temporary emergency accommodation is severely lacking, and for trans people it is almost non-existent. Most emergency housing services are either for women or for men, and often this means that trans people are either unsafe and uncomfortable, or are simply not allowed.
One of the possible solutions we raised is to ensure that the government legislates a requirement that property investors who own more than a few properties are required to rent the remaining properties out as low income housing. This would still allow home ownership, batches, and a handful of high income rentals, but investors would need to rent out all other properties as affordable housing, thus bringing rents down and ensuring that housing takes a step toward being seen as infrastructure rather than a commercial commodity.
The take home message overall was that it is a Human Right to have decent housing, and that the government needs to take responsibility for ensuring that everyone has a decent home to live in.
Please contact your local MP and tell them what you think and why, write a letter to a newspaper, an article online, and talk with your friends and whanau. Change can only come if we push for it.
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Ms Leilani Farhais the UN Special Rapporteur on adequate housing as a component of the right to an adequate standard of living, and on the right to non-discrimination in this context. She took up her mandate in June 2014. Farha is the Executive Director of the NGO Canada without Poverty, based in Ottawa. A lawyer by training, for the past 20 years Ms. Farha has worked both internationally and domestically on the implementation of the right to adequate housing for the most marginalized groups, and on the situation of people living in poverty. Her most recent report to the Human Rights Council focusses on access to justice for the right to housing.
The anti-trans campaign group ‘Speak up for Women’ is holding an event at Massey University, which promotes and advocates for the removal of human rights and legal protections from trans people. Trans people are a severely stigmatised, disadvantaged, and discriminated against population, that experiences some of the highest rates of violence including sexual violence in Aotearoa NZ. This is unacceptable.
Massey University is Rainbow Tick certified. This achievement confirms our commitment to the Rainbow community, and to provide a safe and inclusive environment for its members.
All staff and students need to feel comfortable being their whole-self, and to work and study without fear of harassment or discrimination. We’re committed to equal opportunities for all, regardless of your:
gender identity
marital status
religious belief
colour
race
ethnic or national origin
disability
age
political opinion
employment or family status
sexual orientation.
Hosting a known anti-trans extremist group is in direct opposition to this commitment.
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The activism of Speak up for Women is entirely based on removal of human rights for trans people, who suffer from extremely high rates of stigma, sexual violence, and discrimination across housing, healthcare, education, employment, access to goods and services, and all other areas of public life. This stigma, discrimination, and harassment results in minority stress and suicidal ideation, suicide attempts, and deaths, at greatly elevated levels compared with the general population [Counting Ourselves, 2019].
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Massey University must take action to prevent harm toward trans students, staff members, and members of society.
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This week the High Court backed the Auckland Council’s decision to cancel a booking for far-right speakers Lauren Southern and Stefan Molyneux, with Auckland Mayor Phil Goff saying that the right to free speech did not include the right to a platform, and that “These individuals who want to incite hatred against others are, in my view, not welcome here.”
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Rainbow Tick Acting President Martin King said Massey University’s Rainbow Tick status would likely be reviewed if it allowed the anti-trans conference to go ahead.
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Massey Wellington Students Association is calling for the event to be cancelled. It has penned a petition, saying ”By providing a platform for a hate group to speak on our campus, Massey University is putting ‘freedom of speech’ over the safety of its staff and students. This petition has gained over 1,300 signatures in just 5 hours. You can sign the petition here.
Counting Ourselves, a national report on transgender health, has just been released.
The survey had 1,178 participants, from all regions of Aotearoa, ranging from 14 to 83 years old.
The research, funded by the Health Research Council and with support from University of Waikato and Rule Foundation, found that trans people experience discrimination at more than double the rate of the general population, almost half of trans people had someone attempt to have sex with them against their will since age 13, and almost a third reported someone did have sex with them against their will since age 13. Participants reported high or very high levels of psychological distress at a rate nine times that of the general population. In the last 12 months, more than half had seriously considered suicide, and 12% had attempted suicide.
key findings
Medical
In the last 12 months, 13% of participants were asked unnecessary or invasive questions during a health visit
17% reported they had experienced reparative therapy (a professional had tried to stop them from being trans)[note: sometimes called “conversion therapy”]
36% avoided seeing a doctor to avoid being disrespected
Stigma, Discrimination, and Violence
67% had experienced discrimination at some point
44% had experienced discrimination in the last 12 months – this was more than double the rate for the general population (17%)
21% were bullied at school at least once a week, much higher than the general population (5%)
83% did not have the correct gender marker on their New Zealand birth certificate
32% reported someone had had sex with them against their will since they were 13
47% reported someone had attempted to have sex with them against their will since they were 13
Compared to the general population, participants were almost three times more likely to have put up with feeling cold (64%) and gone without fresh fruit or vegetables (51%) in order to reduce costs.
Distress and Suicide
71% reported high or very high psychological distress, compared with only 8% of the general population in Aotearoa New Zealand
56% had seriously thought about attempting suicide in the last 12 months
37% had attempted suicide at some point
12% had made a suicide attempt in the last 12 months
Participants who reported that someone had had sex with them against their will were twice as likely to have attempted suicide in the past year (18%) than participants who did not report this (9%)
Participants who had experienced discrimination for being trans or non-binary were twice as likely to have attempted suicide in the past year (16%) than participants who did not report this discrimination (8%)
Participants’ rate of cannabis use in the last year (38%) was more than three times higher than the general population (12%)
Protective Factors
57% reported that most or all of their family supported them. Respondents supported by at least half of their family were almost half as likely to attempt suicide (9%).
62% were proud to be trans, 58% provided support to other trans people, and 56% felt connected with trans community.
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.
