Questions about self-identification

How could a self-identification process help people?

A self-identification process means those wishing to amend the sex recorded on their birth certificates (their ‘registered sex’) don’t have to go through a court process or provide evidence of medical treatment. They would have more control over the sex that gets recorded on their birth certificate so that it can reflect their gender.

A non-medicalised self-identification process also allows for non-binary genders for those who do not identify as male or female.

For intersex people, a self-identification process allows them to change their birth certificate to match their gender without providing details of their personal medical history to the court.

Doesn’t self-identification mean rewriting the definitions of who is male and female?

A change to ‘registered sex’ is not a change to biological sex. The Bill does not seek to change the definitions of male and female.

What will stop people changing their gender to, for example, qualify for scholarships or gain access to prisons of another gender? 

The sex recorded on a birth certificate is not conclusive evidence of a person’s sex and does not give someone an entitlement to any sex-based benefits.

While sex is referred to across legislation, the only instance where sex on a birth certificate is determinative is in prisoner placement in male or female prisons. Officials are working to ensure that birth certificates will not continue to be used as evidence of a person’s sex or gender in this process.

The Department of Internal Affairs has reviewed evidence from countries where self-identification laws are in place and found little evidence of people trying to game the system. 

There will also be measures put in place to ensure that only those committed to changing their gender do so. For example, applicants will be required to complete a statutory declaration - making a false statement on a statutory declaration is a criminal offence punishable by five years' imprisonment. Witnesses to a statutory declaration (like Justices of the Peace) will assess the credibility of a person and can refuse them if they are not satisfied the declaration is sincere.

Won’t self-identification compromise accurate sex-based data collection? This is important for medicine and science.

In most cases, giving information on one’s sex or gender is up to an individual and is not checked against what appears on their birth certificate. Also, because sex and gender are often used interchangeably, a person may give their gender when asked for sex information or vice versa. Stats NZ have reviewed their statistical standards for sex and gender. Statistical standards do not fall within the Department’s mandate, but we are considering where self-identification changes should align with Stats NZ’s findings where relevant. You can find out more  about Stats NZ’s work here: [LINK] https://www.stats.govt.nz/methods/statistical-standard-for-gender-sex-and-variations-of-sex-characteristics

How will you protect women’s rights to sex segregated spaces if self-identification is introduced?

The sex printed on a birth certificate does not determine someone’s legal sex and any associated rights, and there is no legal provision for definitively determining sex in New Zealand legislation.  A self-identification process doesn’t change the protections for sex segregated spaces.

People have been able to change the sex on their birth certificate since the Births, Deaths, Marriages and Relationships Registration Act 1995 was first enacted, and to self-identify gender on passports since 2012, and we haven’t seen any evidence of this being abused. 

Questions about sex and gender

Are sex and gender the same thing?

Sex and gender are distinct. Sex refers to physiological features that characterise people as male, female or intersex/having a variation of sex characteristics. It is assigned at birth by assessing a baby’s genitalia. Gender is a social category. It relates to socially constructed roles, behaviours, expressions and identities of girls, women, boys, men, and gender diverse people. Every person is best placed to understand their gender.

For many people, the sex they are assigned at birth will match with their gender. For example, someone assigned female at birth may identify as a woman. For other people, the sex they were assigned at birth does not align with their gender. For example, someone assigned female at birth may identify as a man. These people are transgender. Some people may not identify with male or female genders. These people may identify as non-binary, for example, which falls within the broader definition of transgender.

Why do all the documents talk about transgender and intersex people? Is intersex a gender?

Intersex is not a gender. Intersex people are born with variations of sex characteristics such as sexual anatomy, reproductive organs, hormonal and/or chromosome patterns. Their sex or chromosomal characteristics do not fit typical binary notions of male or female bodies.

Intersex people in New Zealand are usually assigned male or female at birth, but this does not always match their gender as they grow up. Most intersex people do not identify as transgender, even if the sex they were assigned at birth doesn’t match their gender when they grow up.

Why does a birth certificate use a sex marker not a gender marker? 

Gender isn’t known at birth, only sex is. It’s only as people grow that they start to understand their gender. 

Why should people be able to amend the sex on their birth certificate? Sex is a biological characteristic that cannot be changed at will.

Under the Births, Deaths, Marriages and Relationships Registration Act 1995, individuals can apply to amend their “nominated sex”. They are changing the sex displayed on their birth certificate. This change is still important - sex and gender can be conflated, with sex often used as a marker of someone’s gender. Not being able to change this information could lead to people being outed as transgender or intersex, being referred to as the wrong gender, or potentially experiences of discrimination. This leads to feelings of stress and anxiety when people want to use their birth certificate to access services.

Questions about children

What about children? Will they be able to amend the sex on their birth certificate?

The sex on a child’s birth certificate can already be amended using the Family Court process. The self-identification provisions recommended by the Select Committee would continue to enable this.

What happens if a child changes their mind? What are the long-term consequences of this decision?

Children can change their mind about how they want to be identified as they grow up. However, children can also be strongly aware of their gender from an early age. A self-identification process would support them to affirm that gender on their birth certificate.

The degree to which children can give informed consent is an important consideration for identity documents. However, unlike the current process, a child wishing to amend their birth certificate would not need to commit to medical treatment for their application to be considered.

Questions about the Bill and the Select Committee process

Why was the Bill deferred?

The Bill was deferred primarily because of limited public consultation on the self-identification provisions.

New provisions changing the way people could amend the sex recorded on their birth certificates were included in the Bill at the Select Committee stage in response to a petition for the introduction of a self-identification process. 

How is the Government responding to legal issues raised in relation to self-identification?

The main legal issue relates to both the current BDMRR Act and the BDMRR Bill. It is not specific to the self-identification provisions. 

Crown Law raised concerns with the clarity of a provision stating that a person’s sex should be determined by reference to the general law of New Zealand.  It advised that clearer guidance on how sex is determined independently from a person’s birth certificate would be beneficial.

The broader guidance on how sex and gender is determined at law is beyond the scope of the Bill or the Internal Affairs portfolio. Consideration will be given to clarifying the relevant parts of the BDMRR Act as the BDMRR Bill is progressed.

Crown Law also raised issues with the impact of self-identification on prisoner placement. The Department is aware of this issue and is working to resolve it with the Department of Corrections.

Why is it taking so long to address the self-identification issue for the transgender and intersex communities?

The Bill was deferred because of concerns around a lack of public consultation on this issue. To address this, the Minister of Internal Affairs has invited Select Committee to consider the self-identification provisions using its inquiry powers.

Questions about the Family Court process to amend sex on a birth certificate

Why are you allowing people to change their birth certificates?

A process to change the sex marker on a birth certificate has been available since 1995.

For some people, their gender does not align with their sex. Allowing people to reflect this on their birth certificate provides them with another option for having accurate evidence of identity. 

What is wrong with the Family Court process to change sex on a birth certificate?

The Family Court process to amend the sex on your birth certificate requires applying to the Family Court and providing evidence of medical treatment to physically conform with the sex a person wants recorded on their birth certificate. The person applying must provide evidence that they have changed their body to “conform” with either a male or a female body. The legislation does not say what evidence is required so different judges require different evidence. This process can be confusing, costly, and intimidating for transgender and intersex people who wish to amend their registered sex.

The Family Court process only recognises male and female genders and is incompatible with recognising non-binary genders. Recognising non-binary genders is only possible if the requirement for medical treatment is removed.

The BDMRR Bill aims to ease the administrative burden for amendments to registered sex on birth certificates and allow recognition of non-binary genders. This will make the change more accessible for people whose sex does not align with their gender.

Other questions

Why can you change your gender on passports or driver licences through self-identification, but not birth certificates?

The provision for amending the sex marker on a birth certificate is in legislation. Passport and driver licence gender requirements could be changed without legislative reform.  

What’s the big deal with birth certificates - can’t people just use other documents, like their passport to access services?

Yes, passports have a self-identification process for listing sex. But birth certificates are often a more practical document to use when accessing services as they are relatively inexpensive and do not expire.

Can’t we just take gender or sex off the birth certificates? / Why do we even have gender or sex on a birth certificate? 

Birth certificates are sometimes used as evidence of identity to access services.  Sex is sometimes a factor that service providers want to use as part of identity checking. 

Some transgender groups have indicated that having a birth certificate that matches their gender can be affirming.

What’s the international view on this issue? I heard the UK stopped a similar law change.

The UK Government consulted the public on the option of introducing a self-identification process and subsequently decided not to introduce it. There was significant opposition, much of which was along similar lines to the opposition here.

Since 2012 at least 15 other countries have introduced a self-identification process. In Australia, Victoria and Tasmania have both introduced a self-identification process.

There is also a significant amount of international human rights commentary on this issue that suggests a self-identification process is an important improvement on any process requiring medical treatment. However, New Zealand is not obligated to introduce a self-identification process by any international agreement.