Submission: Inquiry into Supplementary Order Paper 59 on the Births, Deaths, Marriages and Relationships Registration Bill
About the New Zealand Council for Civil Liberties
The New Zealand Council for Civil Liberties is a voluntary, not-for-profit organization which advocates to promote human rights and maintain civil liberties.
We wish to make an oral submission before the Committee.
Introduction
The Council supports the rights and liberties of all people in Aotearoa New Zealand including their right not to be discriminated against on the basis of their gender, gender identity, or sex characteristics.
Crown Law advises that “there is currently no reason to suppose that ‘sex discrimination’ would be construed narrowly to deprive transgender people of protection.”
The Council agrees with the 2008 Human Rights Commission Inquiry To Be Who I Am Kia noho au ki tōku anō ao that while the the Human Rights Act 1993 (HRA) already protects transgender people from discrimination, HRA section 21(1) (a) “should be amended to state clearly that sex includes gender identity.”
The Council agrees with SOP59’s removal of procedural and financial barriers for people to change the nominated sex on their birth certificates. The Council notes that SOP59 does not make equivalent changes to registered sex on other documents covered by the Bill.
Right to be Free from Discrimination on Nationality
Overseas born New Zealand Citizens and Permanent Residents
Section 16 of Schedule 1 to the Bill as amended by the SOP, removes access to the process for a person born overseas to receive a Declaration from Family Court as to sex under the 1995 Act. Section 16 of the Schedule restricts access as per Section 22A which states that “A person may apply to the Registrar-General for registration of the person’s nominated sex only if the person’s birth is registered under this Act.”
The Department of Internal Affairs acknowledges in their Supplementary Departmental Disclosure Statement that removal of the Family Court Declaration of Sex process for New Zealand citizens and permanent residents born overseas, and the exclusion of people born overseas to the self-identification process, may constitute discrimination on the grounds of nationality under NZBORA section 19.
The Council opposes the reduction in gender identification rights of people born overseas. According to Statistics NZ, in 2018 one in four people ordinarily resident in New Zealand were born in another country, which makes this provision widely restrictive. While a New Zealand born citizen or permanent resident can apply for changes to their recorded sex on birth certificate, a person born overseas has only been able to gain this recognition by a Family Court Declaration. The change removes an ability to apply for gender recognition.
Migrants, Refugees and Asylum Seekers on Temporary Visas
Transgender and nonbinary people in Aotearoa New Zealand on temporary visas or seeking permanent status here do not have a process to gain new documents to match their gender identities. They are required to use a passport which may bear little resemblance to their identity. This creates stress and risks for them. They may also be unable to access support or services without congruent identity documents.
The Council believes there should be a process for the Department of Internal Affairs and Immigration NZ to issue people with certified documents of identity.
Other Certificates
The Births, Deaths, Marriages and Relationships Registration Act provides for the administration and recording of births, deaths, marriages and relationships, yet the proposed amendments only simplify gender change processes on birth certificates not on these other certificates. The Council believes there should be consistent processes for changes to registered sex on all of these certificates.
The Council sees a need for changes to associated documents of immediate family such as children of transgender and nonbinary parents. Changes to a parent’s name and sex on their children’s birth certificates may be needed to minimise discrimination through unintended misgendering of the parent. Birth certificate information follows children through a range of public organisations including the education and health systems. This linked data may result in misgendering of parents throughout their children’s lives unless changes are made to synchronise the children’s birth certificates with their parent’s documents.
The Council notes similar risks with unchanged public sector files for transgender and nonbinary children and teenagers such as school records. These too need changes to names and sex recorded. The Council recommends action by agencies like the Ministry of Health to facilitate relevant administrative changes in their records.
Discrimination on the basis of age
While the Supplementary Departmental Disclosure Statement states“requiring a child’s consent puts children at the centre of the application process and ensures the application is based on their own decision about their gender”, SOP59 does not provide a means for a person under the age of 16 to gain approval for a change in their birth certificate without the consent of their guardian or parent. Such consent may be difficult in families which reject the idea of a child being transgender or nonbinary.
The Code of Health and Disability Services Consumers’ Rights does not specify an age for consent and makes a presumption that every consumer of health services is competent to make an informed choice and give informed consent, unless there are reasonable grounds for believing that the consumer is not competent. Similarly the Medical Council of New Zealand’s Statement on Informed Consent: Helping patients make informed decisions about their care (2019), says “Generally, if a child or adolescent is able to understand what treatment or procedure they are having and why, along with what would happen if they did not have that treatment or procedure, then they are able to decide for themselves”.
NZBORA acknowledges everyone’s innate rights including their right to freedom of expression. The Council believes that competency to make a decision is more important than a young person’s age. The distinction in SOP59 between, for example, a 15 year old and a 16 year old is arbitrary and unnecessary.
The Council recommends the deletion of 22C and the amendment of 22B to include any person under the age of 18 years. The process for younger people to be able to apply for a change to the sex recorded on their birth certificate would still require a letter of support from a suitably qualified third party. It would also require an assessment of their understanding of the consequences and wish to take that course of action.
Recommendations
The New Zealand Council for Civil Liberties recommends:
Amending Section 21(1)(a) of the Human Rights Act 1993 to state clearly that sex includes gender identity and expression.
Retaining the Family Court Declaration of Sex process for New Zealand citizens and permanent residents born overseas to enable them to have a documents which affirm their gender identity.
Enabling the Department of Internal Affairs and Immigration NZ to issue transgender and nonbinary Migrants, Refugees and Asylum Seekers on Temporary Visas, with certified documents of identity.
Similar processes for changes to registered sex on certificates for deaths, marriages and relationships to those for birth certificates.
Providing a mechanism to change name and registered sex details for transgender and nonbinary parents on the birth certificates of their children.
Facilitation by public sector agencies of changes in registered sex in their administrative records of transgender and nonbinary people when those changes are requested.
Deleting section 22C and amending section 22B to include people under the age of 18 years.
