Dear Hon Tracey Martin,
Speak Up For Women is a non‐partisan group of diverse New Zealanders that formed in response to the “self‐ID” proposals in the Births, Deaths, Marriages and Relationships Registration Bill (Reported by the Governance and Administration Committee on 10 August).
The focus of our concerns is twofold:
The rushed and non‐consultative process that has led to the Select Committee’s recommendations; and
The unforeseen impact of the proposed changes, particularly on existing sex‐based exemptions under the Human Rights Act.
We urge you to vote against the administrative change made to the BDMRR Bill at the Select Committee stage. The administrative change deleted Part 2, Subpart 7 of the Bill as introduced and inserted new clauses 22A ‐22J. These changes have not been the subject of any public consultation. To vote against this administrative change may require two actions:
Voting against the Bill at its second reading;
Tabling a Supplementary Order Paper at the Committee stage of the Bill to ensure the original wording of the Bill is retained.
We urge you to support public consultation around this significant proposed change to the legal definition of “female,” and a review of how the proposed changes will affect sex‐based exemptions under the Human Rights Act. For your information, some background and the details of our concern are attached to this letter.
We look forward to hearing from you on the action you will take to affirm the importance of female‐only spaces and services.
Your sincerely,
Speak Up for Women1
Background
The proposals
As you will know, under the proposals, anyone will be able to change the sex recorded on their birth certificate via a simple statutory declaration that they “identify” as the opposite sex (“self‐ID”). Under the existing law, a Family Court declaration (made on the strength of medical evidence of permanent physical change) is required, and the Act uses the language of “sexual reassignment.”
Many people, when they hear the word “transgender,” will think it refers to the tiny number of people for whom the existing procedure was designed: people who from an early age are so uncomfortable with their biological sex (or “dysphoric”) that they risk invasive surgery and permanent medicalisation to alleviate their feelings of distress.
But this is no longer the case.
The “transgender” umbrella now includes an ever‐widening number of people: “non‐binary”, genderqueer, gender‐fluid etc 2. Many, and possibly most, biological males who identify as transgender do not wish to alter their bodies.3
The purpose of the proposals is said to be to “allow people to have greater autonomy over their identity” and to “make it easier” for people to change their registered sex.4 We do not take issue with these good intentions. But it is not just about simplifying an administrative procedure for an existing, tiny category of people. Any male will be able to be legally recognised as female.
Below we set out details of these concerning aspects of the proposed legislation:
1. The undemocratic background to self‐ID
2. Unforeseen Consequences of Self‐ID
3. Effects of proposed changes to existing sex‐based rights and protections for women and girls
1. The undemocratic background to self‐ID
As you will know, the self‐ID proposals were not included in the BDMRR Bill when it was first introduced. The Bill was presented at its First Reading as a straightforward, uncontroversial series of amendments to modernise and streamline the existing Act5.
The self‐ID proposals were considered by the Select Committee at the Green Party’s initiative. It was a clever piece of politicking on the part of the Greens to introduce such a significant piece of social engineering, at the Select Committee stage, in an otherwise uncontroversial Omnibus Bill likely to receive cross‐party support.
Green Party MPs have followed this up by attacking critics on social media in histrionic terms as threatening the “very lives and identities” of transgender people6.
Although it is not made clear in the Select Committee report, the genesis of the self‐ID proposals is a petition to Parliament by transgender activist, Allyson Hamblett, signed by 53 people7.The Governance and Administration Committee considered the Hamblett Petition in a separate process8, and appears to have considered submissions from only Ms Hamblett, the Human Rights Commission, and the Department of Internal Affairs (DIA)9.
Importantly, it appears the DIA raised concerns about self‐ID. The Report records:10
“DIA said that because a birth certificate involves core identity information, any potential law change has wide‐ranging implications. A birth certificate forms the basis for information on other official documentation, such as passports and driver licenses. Passports and driver licenses are considered “transactional” documents that involve less formal processes than s 28 [of the BDMRR Act 1995]. Unlike a registered birth record they can be revoked.
Notwithstanding this concern about “wide‐ranging implications,” the Committee instructed officials to review the Act “with a view to amending it to an approach predicated on self‐identification.”
Bellinger v Bellinger
Here is what the House of Lords (now the Supreme Court) has to say on the subject of self‐ID11:
“The distinction between male and female exists throughout the animal world. It corresponds to the different roles played in the reproductive process. A male produces sperm which fertilises the female’s eggs. In this country, as elsewhere, classification of a person as male or female has long conferred a legal status. It confers a legal status, in that legal as well as practical consequences follow from the recognition of a person as male or female. The legal consequences affect many areas of life, from marriage and family law to gender‐specific crime and competitive sport. It is not surprising, therefore, that society through its laws decides what objective biological criteria should be applied when categorising a person as male or female. Individuals cannot choose for themselves whether they wish to be known or treated as male or female. Self‐definition is not acceptable. That would make nonsense of the underlying biological basis of the distinction. The circumstances in which, and the purposes for which, gender reassignment is recognised are matters of much importance. These are not easy questions. The circumstances of transsexual people vary widely. The distinction between male and female is material in widely differing contexts. The criteria appropriate for recognising self‐perceived gender in one context, such as marriage, may not be appropriate in another, such as competitive sport. … [The case] raises issues whose solution calls for extensive enquiry and the widest public consultation and discussion. Questions of social policy and administrative feasibility arise at several points, and their interaction has to be evaluated and balanced.” [emphasis added]
The Government’s claim about consultation
The DIA report (dated 11 June 2018) that accompanies the GAC report on the Bill records the Government’s position as follows:12
“The Government position… focuses on the substance of the Petition, which the public has had the opportunity to submit on. Implementing more extensive changes without consulting the public and private sector agencies could have significant unintended consequences.”
But the GAC’s consideration of the Hamblett Petition was not a consultative process. As set out above, the GAC considered submissions only from Ms Hamblett, the Human Rights Commission, and DIA.
A contrasting approach to consultation: the UK
In July 2017 Theresa May’s government announced plans to introduce self‐ID.13 This followed a 2016 review of existing legislation by the Women and Equalities Committee. The announcement was met with considerable public opposition, particularly from women’s groups.
Critics of the proposals were invited to Parliament for a meeting in November 201714. As criticism mounted, on 5 June 2018 the government was forced to clarify that it had “not yet decided” to introduce self‐ID, and would consider the results of a public consultation (subsequently launched inJuly 2018 for 12 weeks).
The government noted it had already consulted with a variety of stakeholders including women’s groups, charities, and service providers, and was considering the experience of countries with different gender recognition models, not just those with self‐ID. The government also confirmed its commitment to existing protections for women under the Equality Act, which allow provision for single and separate sex spaces.15
Public opinion polls in the UK show only about 1 in 5 people support self‐ID, and this falls to 13% among Conservatives.16
2. Unforeseen Consequences of Self‐ID
The quote from the 11 June 2018 DIA report set out above suggests the Government’s position is that the Bill will not have wider implications (i.e. beyond simply relieving the administrative burden on transgender people). Reliance is placed17 on clause s 22I, which provides that despite the proposed changes “the sex of every person must continue to be determined by reference to the general law.”
Respectfully we do not consider this is correct, and we have had the advantage of input from members of our group in the legal profession. How is any agency, school, sports team or female‐only service provider meant to assess a person’s sex if not via their birth certificate? A birth certificate is intended to provide an official record, and evidence of its contents. And while the Bill provides that original birth records (i.e. the records that disclose natal sex) may be accessible in certain limited situations (e.g. law enforcement), this information is not available to the providers of female‐only spaces or services.
The fact that the proposals will have wider implications is well illustrated by the prison issue (highlighted by National members of the GAC) and Department of Corrections’ view that amendments to the existing Corrections Regulations will be required to ensure prisoner safety.18 We note that the GAC appears to have been alerted to this issue only as a result of a submission by a concerned member of the public19. This rather points up the problems with the lack of consultation.
“No evidence of abuse”/”female prisoners not at risk”
The DIA has repeatedly stated that there is no evidence internationally of self‐ID being used by prisoners to “game the system” and no evidence that housing male‐bodied transgendered people in female prisons will increase the risk of offending by them.20
This is demonstrably incorrect.
In the United Kingdom, the evidence is that the number of male inmates identifying as female is increasing21. In a submission to the 2016 enquiry into the Gender Recognition Act, the President of the British Association of Gender Identity Specialists (i.e. a professional body that could scarcely be accused of an anti‐trans bias) referred to:22
“[T]he ever increasing tide of referrals [to gender identity specialists] of patients in prison serving long or indeterminate sentences for serious sexual offences. These vastly outnumber the prisoners incarcerated for more ordinary, non‐sexual offences. It has been rather naively suggested that nobody would pretend transsexual status in prison if this were not actually the case. There are, to those of us who actually interview the prisoners, in fact many reasons why peoplemight pretend this. These vary from the opportunity to have trips out of prison through to the desire for a transfer to the female estate (to the same prison as a co‐defendant) through to the idea that a parole board will perceive somebody who is female as being less dangerous through to a (false) belief that hormone treatment will actually render one less dangerous through to wanting a special or protected status within the prison system and even (in one very well evidenced case that a highly concerned Prison Governor brought particularly to my attention) a plethora of prison intelligence information that the driving force was a desire to make subsequent sexual offending very much easier, females generally being perceived as low risk in this regard.”
New Zealand has its own high profile examples: Rory Francis, Alex Seu and Malcolm Platt.
In 2017 the UK women’s group Fair Play for Women compiled data suggesting that disproportionately high numbers of transgender prisoners (41%) are convicted sex offenders. These statistics were ridiculed in the media by trans‐activists23, but have recently (13 August 2018) been confirmed by the Ministry of Justice. Of 125 transgendered inmates, 60 (48%) are serving sentences for sexual offences. (This compares with 19% of all prisoners serving sentences for sexual offences). Of those 60, 27 were convicted of the most serious sexual offence of rape.24
Prison Governors in the UK have spoken out about self‐ID, some on condition of anonymity, and have expressed concern that the transfer of male inmates to female prisons will be much harder to control, and may lead to intimidation and attacks.25 There is concern that even under the present UK system, the risks are not being adequately managed.26
The President of the Prison Governors’ Association, Andrea Albutt, said in April 2018:27
I have seen women feeling very threatened by transgender prisoners’ presence. Women prisoners are very vulnerable. A lot have abusive men in their lives, who are part of the reason they have ended up in prison. To put all men who declare they are women into women’s prisons would be very damaging. You do get trans prisoners who are going through [transition] who still look very masculine…and if they are 6ft 2in they are very scary.
There have been several publicised reports of male‐born transgender inmates sexually assaulting or sexually threatening female inmates, resulting in their transfer back to male prisons.28 These incidents have occurred under the UK’s current law, which does not embrace self‐ID.
Sexual assault of any prisoner is unacceptable. But it may be questioned why a vulnerable and small population of female inmates (who have a very different offending profile to that of male prisoners, with lower rates of violent and sexual offending) should be required to absorb a population of male-bodied offenders, nearly half of whom (on UK figures) have been convicted of a sexual offence.
Effects on existing sex‐based rights and protections for women and girls
It is striking that the GAC report, and the Human Rights Commission submission, contain no discussion of the potential impact of self‐ID on the existing sex‐based exemptions under the Human Rights Act, despite this issue being at the forefront of the current debates in the UK.
The Human Rights Act sets out thirteen “prohibited grounds of discrimination.”29 “Sex” and “sexual orientation” are expressly included, but “gender identity” is not. The Commission takes the view that “sex” includes “gender identity” (although, contrary to the impression given by the submission, this issue has not yet been determined by New Zealand courts).30
The authors of a leading human rights text regard the question whether “sex” includes “gender identity” as a “one of the most difficult issues associated with the term ‘sex.’”31 Yet the Commission has not acknowledged it as an issue at all.
A growing body of scholarship highlights the potential for conflict between women’s human rights and “gender identity” rights32. Gender identity rights are singular in the way in which they seek not only to protect a marginalised group (transgender people), but to redefine an existing marginalised group (women).
Areas where conflict has arisen, or may potentially arise include:
Access to single‐sex spaces and institutions (e.g. changing rooms, girls’ schools, women’s shelters, rape crisis centres, Girl Guides, women’s prisons)
Meaningful records and statistics – e.g. crime, health, employment, pay gap. The DIA appears to consider the anticipated “small number of changes” to birth certificates will not have any effect on statistical accuracy. But this assertion is not supported by any evidence.33 We note that in the UK, an NHS director has recently warned of the potential for 2 million people to be seeking gender treatment, or 3% of the population34. Those numbers are not statistically insignificant, even accepting that not all will seek birth certificates in their chosen identity.
Allocation of public resource
Female‐only scholarships and quotas
Intimate searches or medical procedures
Caregiving
Counselling services
Sports teams
The Human Rights Act contains several “exceptions” to the general prohibition on discrimination on the grounds of “sex”, which recognise some of these concerns. For example:
(1) Section 27 (exception in relation to employment, where sex is a “genuine occupational qualification”; where “reasonable standards of privacy” need to be upheld; or where the job involves counselling about intimate matters (e.g. sex or violence)).
(2) Section 43 (allows for the maintenance of “separate facilities for each sex” on the grounds of “public decency or public safety.”)
(3) Section 44 (exception in relation to the provision of counselling or courses about intimate matters)
(4) Section 49 (exception in relation to the participation in sport where the “strength, stamina or physique” of competitors is relevant).
(5) Sections 55 and 58 (exceptions in relation to sex‐specific accommodation and schools).
However, because the Human Rights Commission takes the view that “sex” now includes “gender identity”, it would presumably follow that a person must be treated as their preferred sex for the purposes of these exemptions35. In other words, acquisition of a female “gender identity” permits access to female single sex spaces, female‐only jobs, sports teams etc. In effect, “gender identity” trumps “sex”.
Respecting “gender identity” does not inevitably involve self‐ID however (much of the relevant human rights case law concerns persons who have undergone sexual reassignment, i.e. post‐operative transsexuals). It is obvious that a policy of self‐ID will have even greater impact on sex‐based exemptions.
As UK human rights lawyer Julian Norman recently put it (in relation to analogous self‐ID proposals in that country):36
“Amendment of the [Gender Recognition Act] to reduce gatekeeping and to encompass a much wider spectrum of self‐perceived women will inevitably have an immediate and potentially destructive impact on the sex based exemptions provided under [the Equality Act 2010]… [I]f it is proposed to amend the GRA to open up the legal route [to becoming female] to many thousands more people with no oversight beyond a statutory declaration, then it is axiomatic that [the amendment] will have an enormous effect on [the Equality Act].… I would suggest that most feminists are quite prepared to accept the self‐perceived gender of anybody, but that many have reservations over accepting that sex‐based exemptions should encompass that gender, which is a matter of self‐perception and is therefore almost impossible to ascertain in law.”
The issue is not necessarily limited to the males that choose to “self‐ID”. Because no change in physiology or appearance is required, males who “self‐ID” as females will for all practical, everyday purposes be indistinguishable from the general population of males. How then will male access to female public facilities (which, according to the Human Rights Act, exist for reasons of safety and decency) possibly be regulated?
These issues are highly complex and there is no easy answer to many of the questions that arise. But the Government has not even recognised that there is an issue.
“No longer consistent with international law”
The Government maintains the existing procedures are “no longer consistent with international best practice and developments in international human rights law.”37
In our respectful view, the Human Rights Commission’s submission to this effect was somewhat overstated.
The Commission does not cite decisions of the European Court of Human Rights that conclude that a refusal to supply post‐operative transgender persons with a new birth certificate (in their chosen sex) does not constitute a breach of their human rights38/ The Court was influenced by the fact that a birth certificate is an historical record which carries administrative consequences.
Further, at the time of the decision, transgender people in the UK (as in NZ) were nevertheless able to change their drivers’ licenses and passports, which allows them to present themselves in their new identity for many practical purposes.39
The Commission places reliance on the “Yogyakarta Principles” in support of self‐ID.40 But these principles do not have any legal status, in either international or domestic law, and the Commission does not make this clear.
While it is true that a number of overseas jurisdictions have adopted “self‐ID” legislation, we are aware of no analysis of the content of this legislation, its effects or exemptions. Indeed such legislation is an extremely recent development internationally, such that caution should be exercised before drawing definitive conclusions.41
“Moral panic”
A common trans lobby tactic is to dismiss women’s concerns about the impact of self‐ID on women’s sex based protections as demonising and scaremongering. It is said that sex segregated spaces are a relic of Victorian puritanism, defended only by the “alt‐right” and religious fundamentalists.
Women who question self‐ID by reference to documented cases of violence or sexual violence by trans‐identifying males (including that committed by high profile proponents of self‐ID42 ) are confronted with a confounding set of responses:
The violence is categorically denied, and/or attributed to “alt right” fake news;43
The offenders are dismissed as not “truly” transgender (of course self‐ID makes no such distinctions);
It is said to be wrong and discriminatory to consider wider implications because of one or two “bad apples” (i.e. the transgender equivalent of #notallmen)
It is said that transgender people suffer violence too (overlooking that it is not women who commit that violence); and
The violence is erased. Owing to lobby groups like Trans Media Watch, it is now common practice to report violence committed by male bodied transwomen as “female” violence, using female pronouns even where the offending involves a penis.
We support the rights of transgender people to live their lives free from discrimination and violence. We recognise that transgender people are stigmatised and vulnerable, and we deplore harmful stereotypes. Our concern is not with transgender people per se. It is with the reality and prevalence of male violence against women, and the vulnerability of women and children to that violence. It is with women’s need for privacy and dignity in relation to male‐bodied people.
There is no evidence that identifying as a woman, or undergoing transition, statistically reduces the threat to women. In fact the available evidence is that it does not.44
We repeat that under a self‐ID model, males who self‐identify as females will for all practical purposes be indistinguishable from the general population of males. Women’s public facilities will become unisex by default. A recent (2 September 2018) investigation carried out by UK newspaper the Sunday Times showed that almost 90% of reported sexual assault, harassment and voyeurism in swimming pool and sports‐centre changing rooms happen in unisex facilities. This is despite the fact that unisex facilities make up less than half the total.45
We accept that our views about the importance of female only spaces and services are “discriminatory”, but only insofar as they “discriminate” against males generally. We believe sex segregated spaces and services exist for good reason: safety, privacy and dignity.
Conclusion
We urge you to vote against the administrative change made to the BDMRR Bill at the Select Committee stage. The administrative change deleted Part 2, Subpart 7 of the Bill as introduced and inserted new clauses 22A ‐22J. These changes have not been the subject of any public consultation. To vote against this administrative change may require two actions:
1. Voting against the Bill at its second reading; 2. Tabling a Supplementary Order Paper at the Committee stage of the Bill to ensure the original wording of the Bill is retained.
We urge you to support public consultation around this significant proposed change to the legal definition of “female,” and a review of how the proposed changes will affect sex‐based exemptions under the Human Rights Act.
We look forward to hearing from you on the action you will take to affirm the importance of female‐only spaces and services.
Yours sincerely
Speak Up For Women