Big Read: A matter of identity

A law change for trans people to change the gender on their birth certificates was tantalising close before it was pulled at the last minute following furious debate.

Sally Dellow knew she identified as a woman when she was a child, but did not do so publicly until she was in her 40s.

She had gender reassignment surgery when she was 53, and applied to the Family Court to change the gender on her birth certificate a year ago. It was the final step — the full stop.

"And I've never looked back."

That change to her birth certificate was easy for her because she had the money and the medical records to do it easily.

"It was the last piece of documentation I needed to change it, to complete it."

She says changing the birth certificate was not always just about completing a process — but about helping to prevent someone being "outed" as transgender when they were not willing for it to happen, such as for employment or at school.

"The issue has always been if a workplace requires a birth certificate and it hasn't been changed and the gender is at odds with all the other documentation, it actually outs the trans person in a situation that may not be safe for them."

However the current process for changing a birth certificate closed out many, unnecessarily.

"It privileges basically wealthy, well-educated people who understand the system."

She said only those who could afford the health services could meet the requirements easily.

Others usually need to hire a lawyer to fight their case.

The process was also long — taking about six months.

Not every trans person goes through the medical processes and can negotiate the Family Court.

A proposed law change will mean others can take that step more easily, and without having to go through medical treatment or surgery first.

The change would mean trans people could change the identity on their birth certificates by signing a statutory declaration rather than applying to the Family Court and presenting medical evidence showing they have changed their physical attributes.

The supporters of the change say it will help trans and others by providing specific Intersex and X options.

They also say it removes another discrimination against trans people by making the process more accessible rather than only for those who have the money and time to meet the medical criteria and go through the Family Court process.

But the change also has its critics, including conservative and religious groups such as Family First and some feminist groups who believe not enough thought has gone into the consequences of such a move on women's-only spaces, such as prisons and women's refuges.

They also raise the prospect of imposters — men who falsely change their gender not because they identify as women but solely to gain access to women or to a place reserved for women.

It has also been questioned whether there was enough chance for public input into the change, and for government departments such as Corrections and police to consider the ramifications.

A similar debate has been going on in the United Kingdom after British Prime Minister Theresa May put up reforms to its Gender Recognition Act to allow people to self-identify.

The 16-week-long public consultation period was marked by often toxic debate and protests, pitting trans people and their supporters against some feminists and academics.

In New Zealand there has been comparatively little public consultation but the arguments raised are similar.

The impetus for the change dates back to 2008 when the Human Rights Commission recommended simplifying the process for changing identity documents it in its Inquiry into Discrimination Experiences by Transgender People: To Be Who I Am.

Since then the changes have been made to allow trans people to change the gender on passports and drivers' licences by way of a declaration.

The Births, Deaths and Marriages Bill was put up by then Internal Affairs Minister Peter Dunne in 2017 and did not include any provisions to change the process for changing gender on birth certificates.

However, that same year the Government and Administration Committee considered a petition on the issue and recommended a review to allow self-identification.

In February the new Labour-led Government referred that to the select committee to review as part of Dunne's bill.

The committee came back with a recommendation of change to allow anyone to change the gender on their birth certificate simply by making a statutory declaration.

In its report, the committee said based on the evidence they had heard, they did not believe it would do any harm.

That move was backed by groups including the Human Rights Commission, human rights groups and the parents of trans children.

Sharyn Forsyth's son is 17 and came out as transgender at 13. Forsyth now runs a support group for the parents of transgender children. There are 270 families in the group.

She supports the new process, saying it was difficult to change the birth certificate now because medical treatment options did not kick in until early puberty.

"Particularly when they are young, a birth certificate is often the only form of identity a person has, so it means if they want to change school or join a school or join a club, anything they need to prove an identity for, they are automatically outed to that organisation or community."

Forsyth said the conditions, including parental consent, for children were appropriate although there would be cases where parents had different views on it and some way of resolving that was needed.

Tabby Besley is National Co-ordinator for InsideOUT, a group which provides practical and advocacy support for young trans.

Besley said the need for parents' consent would be a barrier for many. She too cites the need for children to have an identification document that does not out them as trans and points to the ability to change the record back at any time.

"We do not believe there is harm in giving young people self-determination regarding these decisions."

There remains a chance the change will come a cropper to cold feet and fail completely, or be carved out to be dealt with by a separate legislative process later to allow for wider public input.

The lead minister is Internal Affairs Minister Tracey Martin, who is also a New Zealand First MP.

She would not be inteviewed on the bill until next year before it returns to Parliament.

There was no response to requests for comment from Prime Minister Jacinda Ardern and National leader Simon Bridges would not comment, saying it was up to the Government to front on the bill.

While the Government has supported changing the process to allow self-identification, the concerns raised will likely give some NZ First and National MPs cause for pause.

The Green Party strongly supported the change and MP Jan Logie denied there had been little opportunity for people to submit on such a change because of its inclusion at a late stage, saying there were chances both during the petition and the bill itself.

On the bill there were 64 submissions overall, 29 of which supported the change while 22 opposed it and favoured the status quo.

National MPs on the committee backed the proposal but did flag concern about some aspects of it including the potential ramifications for women's prisons.

That issue was also raised by Speak Up for Women, a group set up to campaign against the Births, Deaths and Marriages Bill proposal.

Spokeswoman Georgina Blackmore said the absence of any criteria or medical evidence in the new process meant it could be abused and there was no check to ensure that did not happen. Government departments had also not had an opportunity to assess the impacts.

"This has huge implications for organisations, government departments. Probably my biggest concern would be the New Zealand prison system.

"There have been instances where women have been assaulted in prisons overseas because self-identification was allowed. Self-identification means you don't have to undergo any medical or surgical intervention."

In October in the United Kingdom, a trans prisoner, Karen White, was jailed for life after sexually assaulting women in a women's prison and raping another two outside prison.

The Ministry of Justice had apologised for placing her in the women's prison.

White had not gone through any medical gender reassignment and was accused by some of pretending to be trans to get access to the women's prison.

In New Zealand, it is Corrections policy not to put a trans person in a women's prison if she has sexually offended against women.

However, under its current guidelines where there is a birth certificate stating the gender the prisoner must be put in the prison that accords with that.

Figures provided by Corrections shows that as of early December, 43 people identifying as transgender were in prisons although that number fluctuates.

Corrections is considering the ramifications of the bill and whether its processes for dealing with trans inmates need to change as a result.

A spokesman said the safety of inmates was top priority.

"Safety is our number one priority. "We are considering the potential impact of the Bill on our operations to ensure that our processes uphold the safety of all of the prisoners in our care."

The department would not comment further while the bill was before Parliament.

Blackmore said she did support an easier process, as well as an option for Intersex. "Let's just talk about it rather than just jump in."

Blackmore's stance has been dismissed as transphobic and drawn fire from those involved in the trans community and Labour MP Louisa Wall. They have been dubbed "Terfs" (Trans Exclusionary Radical Feminists) but Blackmore rejects that label, saying it was highly insulting and does not accurately reflect the group's position on trans issues or its concerns.

"It's an intellectual cop-out. It's easier to insult women than to take their concerns even a little bit seriously."

She said there were issues of equity and equality in the issue — from prisons and sports to quota for women in positions of power.

Ahi Wi-hongi, the national coordinator of Gender Minorities, said concerns about the impacts on women's prisons were overstated and could be dealt with by way of Corrections' policies.

Wihongi was one of a large group of trans people and advocates for trans rights who submitted on the change, urging politicians to go ahead with it to remove a barrier for them.

She points out often it is the trans themselves who are assaulted.

"This is an under-studied area, but sexual violence towards trans women is even higher than sexual violence towards non-trans women. They are part of the group we need to be protecting."

Michael Biggs found out for himself how divisive the topic could be. Biggs, a New Zealander, is an assistant professor in sociology at Oxford University in the UK.

He found himself at the centre of a storm after he publicly voiced his concerns about allowing trans people to self-identify in the United Kingdom and what he saw as attempts to stifle any opposition to it.

He was accused of being transphobic — something he rejects. "I think that word has become empty of meaning."

Biggs warns any government against trying to make any such change on the quiet or dismissing out of hand the concerns that are being raised. "Such a massive change, you need input from a lot of people. Bringing it through quietly is extremely undemocratic."

He said even in Britain where there was a 16-week consultation there were attempts to shut down concerns, which is why he had got involved as one of 100 signing a letter to the Guardian raising concerns about the suppression of academic freedom.

"These changes really are revolutionary, I mean they are eliminating sex as a basis for organising social and political life."

He is also concerned about the use of "puberty blockers" to try to halt puberty — something the Ministry of Health in New Zealand says are a "safe and fully reversible medicine" that can be used through puberty to late adolescence "to help ease distress and allow time to duly explore gender health options".

While there are no official statistics on the number of trans people in New Zealand, at the Wellington Endocrine Service the numbers identifying as trans at their clinic shows an increase in recent years — from between 10 and 15 a year between 2000 and 2008 to 30 in 2014 and 92 in 2016.

The age ranges in 2016 were between 17 and 51 but most were at the younger end — the median age was early 20s.

Dellow was among those in the early 2010s.

She is urging politicians not to get cold feet, saying she was from a generation that had suffered unnecessarily and she does not want that to happen to others.

'Nowhere to go'

Sally Dellow. Photo / Marty Melville

For Sally Dellow, changing the gender on her birth certificate when she was 55 last year was the final step in acknowledging something she had known since childhood.

"In the 1970s, there was nowhere to go, there was nobody I knew or in public life who was trans. No role models."

She tried to live what she calls "a normal life" — as a heterosexual man, having three children who are now teenagers.

"Then 10 years ago, it got to be too much. I thought 'I've lived with this secret for 40 years and I'm still miserable'. So I thought I'd acknowledge it and see what happens."

In 2010 she acknowledged it privately and three years later she transitioned publicly. She had surgery a year later.

"I've never felt better."

She said there was already a lot of discrimination against trans people and the risk of being outed by what was on a birth certificate added to that.

"This just makes things a little more difficult for them getting employment. So [the proposed law change] just removes that little impediment."

Dellow said making it easier to change gender officially would also have mental health benefits.

Changing genders

Current process

• A Family Court declaration is needed to change gender on a birth certificate.

• Medical evidence must be provided of steps taken toward permanent physical change, such as medical treatment or surgery. The Court must be satisfied steps have been taken to acquire "a physical conformity" with the gender identified with.

• The only options are male and female. There is no option to change to someone of indeterminate sex, unless incorrectly recorded at birth.

• A person must also record a name change to one that "accords with the nominated sex".

Proposed

• Adults can change the gender on their birth certificate by way of statutory declaration. No medical evidence is required. The declaration should include a statement that they intend to live permanently as their preferred gender.

• 16 and 17 year olds need consent from a guardian and a recommendation from a health professional, such as a counsellor or social worker.

• Children younger than 16: Joint consent from parents or guardians needed and a recommendation from a health professional that it is in the child's best interests. The child must confirm the change of registered sex once they turn 18. Options will include male, female, inter-sex or X (unspecified).

• Except for special circumstances, a person can only change the recorded gender once but has the option to revert to the gender recorded at birth.

• All references in the current law to medical treatment or evidence, sexual assignment and sexual reassignment are removed.
• Family Court to decide appeals.

• New process to be reviewed by Minister of Internal Affairs after five years.

The bill

• The Births, Deaths, Marriages, and Relationships Registration Bill was introduced in 2017 by then Internal Affairs Minister Peter Dunne to update several aspects of the law.

• In February, the Government told the select committee to consider changing the process for changing the gender on a birth certificate. The committee inserted new provisions to allow self-identification by way of a declaration rather than through the Family Court.

• The bill, including the new measure, is expected to go back before Parliament for another vote early next year.

• The minister in charge, Internal Affairs Minister Tracey Martin, can not remove or amend the new measure prior to that point.

• Parliament can vote to split it out and send it back to select committee for public submissions, or the new provision can be further amended or voted down when Parliament debates it in more detail.