Suzanne Levy, January 2023
Sex Self-ID has been one of our main topics of conversation for several years now. We know we don’t want it, we know it’s wrong, but what does it actually mean for women in New Zealand?
I’m going to attempt to unpick the New Zealand situation, which I believe is quite unique compared to other parts of the world. This is in no way a legal opinion, it is my take on things and has come about from various discussions with lawyers along with a lot of listening and reading.
What is Sex Self-ID?
This can be described in two parts:
1. Sex Self-ID in law
This is a legislative change to the way a birth certificate can be altered, it makes it easier and faster for a person to change the sex marker on their birth certificate and simply requires a statutory declaration by a person stating that they feel they are living as the opposite sex.
A statutory declaration is a serious and binding legal document and there are consequences for providing false information, but when it contains feelings it is entirely impossible to prove that a person was not feeling a particular way. The legislation will also allow for multiple changes and will not be limited to male and female.
Fortunately, the same legislation that makes it easier to change the birth certificate also brings in a new clause that makes the birth certificate less binding. (See 79. Certificates as Evidence below)
The New Zealand birth certificate is now a vanity document.
Speak Up for Women did not suggest that birth certificates should never be changed, our position was that the legislation and process should be left alone.
2. Sex Self-ID in public life
In some ways the horse bolted long before the legislation changed. The concept of sex self-ID has been infiltrating our government departments for several years, wording changes that talk about “women or anyone who identifies as a woman” are common yet have no legal backing. This form of self-ID does not involve a birth certificate, it involves a statement by one person that overrides reality and breaks the social contracts that have helped to keep women safe.
The idea that “trans women are women” has been hammered through our society to the extent that many people believe that it is a legal concept and that they have no choice but to treat trans women as women in every respect. The legal birth certificate changes cement this belief and make our job more difficult. This belief is also cemented in the minds of transgender people who are led to believe that they are legally the opposite sex.
Background and Speak Up for Women’s position
Speak Up for Women believe that sex matters. This is our core belief when protecting and fighting for the rights of women. This belief impacts our core areas of work:
To protect single sex spaces and services that are currently legal under the Human Rights ACT 1993.
To prevent our education professionals teaching concepts that say that sex is something that can be changed.
To protect language that focuses on and celebrates women and the roles they play in our society.
In 1993, when the Human Rights Act was passed into legislation it would be fair to say that most people used the words sex and gender interchangeably - that is because 30 years ago, while not strictly accurate, they were almost always used to describe the same thing.
The generally accepted definition of sex is biological. SUFW believe that sex cannot be changed and we believe that the exclusions in the Human Rights Act are based on this definition of sex.
We are concerned that there are groups and service providers also who believe that sex matters but are including people who self-ID because they think it is illegal not to. In working with these groups it is interesting to see how and when they are being advised and by whom. Are sex and gender the same thing in law? Should they be? When the Human Rights Act says “sex” does it also mean “gender”?
We are aware that there are groups who wish to include people who self-ID into various categories, this is not an issue for us. The HRA was not designed to prevent inclusion.
Inclusion can mean many things. Ironically it is exclusion that creates inclusion. In sport, we make categories so that more people can be included. We have age groups so that 12 year old boys don’t play football against adult men. The exclusive categories are what make sport truly inclusive. Without them, almost every sport would be dominated by men between the ages of 20 and 30 and most others would not bother participating.
The same goes for services. Would women use a rape counselling service where all of the counsellors were men?
The real answer is that the law around discrimination on the basis of sex has not been tested in recent times, since sex and gender have come to mean very different things.
The Legal Situation
The Human Rights Act 1993
The Human Rights Act 1993 explains the situations where it is legal to discriminate, there are not many situations and it doesn’t say that you must discriminate - it simply provides the option. We are concerned with two main sections of the Act - Section 44 and Section 53.
Section 44 of the Human Rights Act 1993 covers the provision of goods and services.
These are the exceptions that we are focusing on.
45. Exception in relation to courses and counselling
Nothing in section 44 shall prevent the holding of courses, or the provision of
counselling, restricted to persons of a particular sex, race, ethnic or national
origin, or sexual orientation where highly personal matters, such as sexual matters or the prevention of violence, are involved.
46. Exception in relation to public decency or safety
Section 44 shall not apply to the maintenance or provision of separate facilities or services for each sex on the ground of public decency or public safety.
Compare: 1977 No 49 s 24(4)
49. Exception in relation to sport
(1) Subject to subsection (2), nothing in section 44 shall prevent the exclusion of persons of one sex from participation in any competitive sporting activity in
which the strength, stamina, or physique of competitors is relevant.
(2) Subsection (1) does not apply in relation to the exclusion of persons from participation in—
(a) the coaching of persons engaged in any sporting activity; or
(b) the umpiring or refereeing of any sporting activity; or
(c) the administration of any sporting activity; or
(d) sporting activities by persons who have not attained the age of 12 years.
(3) It shall not be a breach of section 44 to exclude any person from any competitive sporting event or activity if that person’s disability is such that there would be a risk of harm to that person or to others, including the risk of infecting others with an illness, if that person were to take part in that competitive sporting event or activity and it is not reasonable to take that risk.
(4) It shall not be a breach of section 44 to conduct competitive sporting events or activities in which only persons with a particular disability or age qualification may take part.
Section 53 of the Human Rights Act 1993 covers Land, housing, and other accommodation
There is one exception in this section we are focusing on:
55. Exception in relation to hostels, institutions, etc
Nothing in section 53 shall apply to accommodation in any hostel or in any establishment (such as a hospital, club, school, university, religious institution, or retirement village), or in any part of a hostel or any such establishment, where accommodation is provided only for persons of the same sex, marital status, or religious or ethical belief, or for persons with a particular disability, or for persons in a particular age group.
Compare: 1977 No 49 s 25(3)
Using section 49 as an example (exception in relation to sport) it is obvious that the reference to strength, stamina or physique is there because these are the attributes that give a male sexed person an advantage. Those same advantages would not be present in a female presenting as or identifying as a male gendered person. They are biological attributes.
The other exceptions also relate to sex differences that are not overcome or negated by a gender identity. Someone’s gender identity is subjective and in the case of the other exceptions (45, 46 and 55) which are designed to provide safety, dignity and privacy for each sex, the reality of the person's sex is what matters.
We are entitled to believe what we see with our own eyes.
We also believe that clause 79(2) in the new legislation (Births, Deaths, Marriages, and Relationships Registration Act 2021) reflects this.
Supplementary Order Paper 59
In August 2021 Supplementary Order Paper 59 was released in relation to the BDMRR changes, we were pleased to see that a new clause was proposed, described as follows in the Explanatory Notes:
Clarification of status of birth certificates as evidence of sex and gender
New clause 80(2) clarifies that any individual, private sector agency, or public sector agency authorised or required to ascertain an individual’s sex or gender for a particular purpose may take into account matters other than the information in a person’s birth certificate in accordance with any other applicable legislation (including the Human Rights Act 1993) and the rules of the common law.
Births, Deaths, Marriages, and Relationships Registration Act 2021
Clause 80(2) survived the Select Committee process and became clause 79(2) in the Act as follows:
79. Certificates as evidence
(1) A certificate issued under this Act is admissible as evidence in any legal proceedings and is presumed, in the absence of evidence to the contrary, to be an accurate record of the information recorded in the registry as at the date of issue.
(2) Any individual, private sector agency, or public sector agency authorised or required to ascertain an individual’s sex or gender for a particular purpose may take into account either or both of the following:
the information contained in a certificate issued under this Act:
any other relevant information.
Our goal is to increase awareness of this clause and to provide information and support for individuals and organisations who wish to provide single sex spaces and services.
What does it all mean?
This is new legislation and is yet to be tested, but this is how we interpret it
Single sex spaces are allowed in the same way they have always been allowed and sex means what it has always meant.
Sex and Gender are mentioned as separate concepts, this is a positive step in ensuring that Sex is treated appropriately in law - that sex does matter.
Organisations are given wide scope to establish sex or gender, the birth certificate offers no more evidence of sex than any other information that might be available to the organisation or individual who is establishing sex.
The exceptions in the Human Rights Act 1993 are still valid exceptions.
It is legal to discriminate on the basis of sex as per the Human Rights Act 1993.
What happens next?
The Minister responsible for the Law Commission, Hon Kiri Allan, has asked Te Aka Matua o te Ture | Law Commission to review the protections in the Human Rights Act 1993 for transgender people, non-binary people and people with diverse sex characteristics.
We will be contributing to this consultation and will be asking our supporters to do the same, you can find out more and subscribe to updates on the Law Commission website here.