Dear Minister
We are writing to you for a second time, to raise with you further information relating to the “self‐ID provisions” contained in Section 22 of the Births, Deaths, Marriages and Relationships Registration Bill, currently set down for its second reading in Parliament.
New information about the background to self‐ID
As Speak Up For Women set out in our letter of 3 September 2018, the genesis of the “self‐ID” proposals is Allyson Hamblett’s Petition (2014/0086) signed by only 53 people. Notwithstanding the Government’s recent claim that the public had “the opportunity to submit on”1 this Petition, in fact the Select Committee considering the Petition in 2017 received submissions only from Ms Hamblett, the Department of Internal Affairs (DIA) and the Human Rights Commission. We noted that the DIA appeared to have raised concerns about the “wide ranging implications” of self‐ID at this time2.
We have since obtained the original DIA advice on the Petition (advice dated 5 April and 19 May 2017)3. It confirms the DIA had concerns about self‐ID.
Three significant points emerge:
The DIA did not recommend self‐ID
The DIA did not recommend any amendment to the birth certificate sex provisions of the BDMMR Act, and considered that existing provisions met international law standards
The DIA noted that in 2006‐8, the Human Rights Commission conducted an in‐depth inquiry into discrimination faced by transgender people4. The Commission recommended some changes to the birth certificate process, but did not endorse self‐ID. In fact, the Commission favoured retention of the Family Court declaration process and medical gatekeeping.5
Central to the DIA’s concerns was the identified need to balance the personal interests of transgender people, against the need for certainty and integrity in official documentation6. The DIA noted that medical gatekeeping under the existing law7 had been interpreted broadly in case law, such that gender reassignment surgery is no longer required. This, the DIA said, provides sufficient flexibility to address Ms Hamblett’s concerns8.
The DIA said that self‐ID for birth certificates9:
“would have potentially wide‐ranging implications for New Zealand government and society, including at an international level, because it involves core identity information….the Department is not in a position to confirm the government’s support for [self‐ID] or otherwise.”
Notwithstanding these clearly expressed concerns, the Committee instructed officials to review the Act “with a view to amending it to an approach predicated on self‐identification.”10
In 2006 the Human Rights Commission commenced the world’s first in‐depth inquiry into discrimination faced by transgender people, and reported in 2008. Its terms of reference included consideration of legislative amendments needed to improve the position of transgender people. The inquiry was led by three Commissioners and a team of staff, and they consulted widely.
The Report’s discussion of the legal issues around birth certificate sex is nuanced and considered. Like the DIA in 2017, the Commission recognised the importance of striking a balance between the personal interests of transgender people, and other interests. Some of the Commission’s key findings:
The needs of transgender people need to be balanced against the integrity of official documents11
While a transgender person’s subjective view of their gender identity should be taken into account, there also needs to be objective evidence they have taken steps to live in the appropriate sex14
The potential impact on existing exceptions under the Human Rights Act was also recognised: “a common sense, practical approach is needed to balance the rights of others in order to determine when and how exceptions relating to sex (including gender identity) apply.”
As set out above, the Commission recommended retention of the existing Family Court declaration process, and retention of the medical gatekeeping requirements (although it recommended a modest amendment to the wording of the latter. )15
The Commission essentially repeated this position in its 2010 report “Human Rights in New Zealand.”16
The Human Rights Commission’s current position
It is unclear why the Human Rights Commission has reversed its position and now favours self‐ID.
The Commission’s submission on the BDMRR Bill (dated 2 March 2018), which appears to have been written by two legal advisers, does not even refer to the 2008 Inquiry and its clear rejection of self‐ID.
We set out in our earlier letter our concern that this submission was somewhat misleading in its legal analysis in other respects (i.e. overstating the extent to which self‐ID is reflected in international law).
The Commission’s earlier (2017) submission on the Hamblett Petition was likewise supportive of self‐ID. Written by one of the same legal advisers, it refers in passing to the 2008 Inquiry, but makes no reference to the Inquiry’s recognition of the need for integrity of official records; the need for an objective threshold; or the need to consider the effects on the sex exemptions under the Human Rights Act. To the contrary, the Submission suggests that the reason the Inquiry favoured retention of existing Family Court and medical gatekeeping for birth certificates was because of the need for consistency with passports and driver licenses (which at that time were difficult for transgender people to change).17
This is simply an incorrect interpretation of the Inquiry’s Report.
Indeed, the Commission’s current argument ‐ that birth certificate self‐ID is necessary because self‐ID is now permitted for passports ‐ overlooks the clear distinction between these documents, recognised by the 2008 Inquiry. 18
We note that the DIA clearly shared our concerns about the quality of the Human Rights Commission’s Hamblett submission.
The DIA criticised the Commission’s characterisation of NZ’s existing law as an “outlier”, noting that on an international continuum New Zealand can reasonably be regarded as close to the liberal end.19 The DIA also criticised the Commission for providing “incomplete information” and implying that the existing law is interpreted more strictly than it is in fact.20
Finally, the DIA noted that the Commission relied on a submission to the UN Human Rights Council (by the Sexual Orientation, Gender Identity and Intersex Coalition (“SOGII”)). As the DIA pointed out, however, the Council did not make any recommendation in relation to this submission: a rather significant point the Commission omitted to mention.21
We suggest the Commission’s current position is poorly‐reasoned, and based on a flawed understanding of its own comprehensive 2008 Inquiry.
Conclusion
Both the Department of Internal Affairs in 2017, and the Human Rights Commission in 2008, rejected self‐ID for birth certificates. Both agencies recognised the need to strike a balance between the personal needs of transgender people, and other rights and interests (including those protected by the exemptions under the Human Rights Act). The administrative change that deleted Part 2, Subpart 7 of the Bill as introduced and inserted new clauses 22A ‐22J (the “self‐ID clauses” has not been subject to public consultation.
We call on you to work with your Parliamentary colleagues on both sides of the House to identify a way to amend the BDMRR Bill perhaps by a supplementary order paper, to protect sex‐based exemptions under the Human Rights Act.
Your sincerely
Georgina Blackmore
Spokesperson, Speak Up For Women