Transgender flag at Pride Parade / Ted Eytan / Flickr.
I don’t think about my birth certificate much. It’s a struggle when I have to drag it out of the filing cabinet and send it off along with ten pages of forms and proofs of address (who still receives physical letters?) to some large organisation. That process is mildly inconvenient for me, as a cisgender woman who doesn’t face any complicated administrative hurdles or questions about my identity. For trans and non-binary people, the process is often much more complicated.
For trans and non-binary people, anything requiring a birth certificate can be difficult and humiliating. That’s because under the current law, no one can change the sex on their New Zealand birth certificate without a special order from the Family Court. While it’s (relatively) easy to change the gender on a passport or a driver’s licence, holding a birth certificate that doesn’t match other forms of ID raises suspicion when gender diverse people verify their identity for work or study. At the moment, trans people risk being outed and put at risk by processes involving birth certificates.
To ‘prove’ to the Family Court that you deserve an order that changes the gender on your birth certificate, a lot of invasive medical evidence is required. What’s more, you have to pay to get those invasive medical reports. If you’re a trans person who hasn’t been through medical procedures focused on ‘physically conforming’ with your gender identity, the application will be refused.
There are a lot of hurdles to get over. And guarding each of those hurdles is a gatekeeper armed with all of their own subjective assumptions and biases about trans people.
In essence, the process rests in the hands of people with personal biases that they bring to the question of whether a trans person can change the gender on their birth certificate.
Rather than leaving the question of gender identity to individuals, who know themselves and their gender identity better than any external observer, the current system throws the question to experts and judges. And those people are not necessarily supportive or educated on gender diversity.
For non-binary and intersex people, there are no options in terms of amending a birth certificate. Under the current law, birth sex must be either male or female. Even an order from the Family Court after an invasive medical process won’t help.
In short, the current process is degrading for trans people and inefficient for the court. For non-binary people, the process simply doesn’t recognise their existence. But, in good news, there’s an alternative. A Bill that amends the Births, Deaths and Marriages Act is currently in front of Parliament. Part of that Bill focuses on allowing people to change the sex on their birth certificate without a costly court order.
The proposal allows transgender, non-binary, and gender diverse individuals to use a new, relatively quick administrative process. Any person wanting to change their birth certificate would need to make a statutory declaration under oath in order to fulfil the requirements (so the penalties for perjury would apply).
There would be three options for gender: male, female, or X (for non-binary people or anyone else who identifies as neither male nor female). An application and a few forms would be all that is required. No legal fees; no medical experts. Each person could change their gender once, unless special circumstances applied.
There are concerns about the amendment. Some are valid – for example, it’s important to have a statistical record of trans and non-binary people. That record helps the government to make decisions around medical treatment and funding. Those are minor issues, which can easily be fixed as the Bill progresses through Parliament.
Some other concerns about the Bill are divisive, manufactured talking points. TERFs and other anti-trans activists are actively trying to bring the amendment down. Their criticisms largely focus on hatred and fear mongering, rather than the new process and its implications. If anything seems particularly inflammatory or shocking, please think critically about whether it makes any sense. Transphobia should not be allowed to dominate the conversation about this amendment.
To be clear: passing this law will not affect cisgender people. What it will do is speed up a slow, invasive administrative process and make life easier for anyone who is trans or non-binary.
The proposed process is a huge improvement. Gender is not a matter that someone should have to litigate or ‘prove’. Identity is personal and should be self-determined. Recognising and affirming self-determination of gender is an important step towards inclusivity in Aotearoa.
You can help to support the amendment to the Births, Deaths and Marriages Act by submitting this letter to your local MP, or writing your own submission.Support Villainesse