With less than four months until a new gender self-identification process gets underway, the Government has revealed the options on offer for those who need to change their birth certificate - and Māori gender terms are off-limits for now
New Zealanders will be able to identify as ‘another gender’ or a ‘non-binary gender’ as part of a new self-identification process coming into effect later this year, according to newly released details.
However, the Government has for now opted against allowing the use of Māori gender terms on amended birth certificates, citing the risk of racial profiling as well as misuse by non-Māori.
In December 2021, Parliament unanimously passed a law allowing Kiwis to more easily change the sex or gender recorded on their birth certificate through a basic statutory declaration.
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The change was made because of concerns about the cumbersome and expensive nature of the previous system, which required applicants to provide proof of medical treatment through a Family Court process.
With the new regime due to come into effect from June 15, proactively released documents have shed light on exactly how the process will work, as well as which sex and gender terms applicants will and won’t be able to use.
In a Cabinet paper from December last year, former internal affairs minister Jan Tinetti said applicants would be able to change their sex and gender markers to ‘another gender’ or a ‘non-binary gender’, in addition to ‘male’ and ‘female’.
While some public submitters had supported having a wide range of markers to choose from, Tinetti said gender terminology tended to “evolve quickly, with certain terms becoming more or less preferable in relatively short spans of time”.
The use of so-called umbrella terms had support from the community, and were well entrenched so were likely to have long-term relevance.
It was possible some would feel neither of the gender markers adequately represented their gender, but Tinetti believed it was “sufficiently inclusive to provide the majority of people whose gender is outside the binary with a suitable, if not specific, sex and gender marker”.
The Government had also considered allowing for the use of Māori terminology such as ‘takatāpui’ (used in a similar way to the English term LGBTQI+) given the Crown’s Treaty of Waitangi obligations.
However, some submitters had concerns about the terms being used by non-Māori in a way that would undermine Māori identity, as well as whether being recorded as Māori in an open register could lead to racial profiling and discrimination.
With a lack of consensus from submitters on the appropriateness of including such markers and limited engagement with takatāpui, Tinetti said the terms should be left out until further consultation could take place; a similar rationale was given for the exclusion of Pacific terms.
Tinetti also laid out the process for children up to 15 wanting to change their gender, who would need an application made on their behalf by their guardian as well as a letter of support from a third party (those aged 16 or 17 could apply with either their guardian’s consent or the letter).
Those who would qualify as ‘third parties’ included registered professionals such as a doctor, psychologist, nurse or social worker, or anyone who had known the child for 12 months or longer.
The 12-month period had been chosen as it aligned with other government processes, such as a child’s passport application, while a registered professional would not need to meet that timeframe because of their qualifications.
Tinetti said the process would give young applicants a reasonable level of choice in who they approached for support.
A late November briefing to Tinetti from the Department of Internal Affairs noted that Green Party MP Dr Elizabeth Kerekere, who had provided officials with expert advice and whose doctoral thesis was the first piece of major research on takatāpui identity, could be disappointed with the decision to exclude Māori gender markers given her support.
The department recommended sending Kerekere a letter thanking her for sharing her expertise, and noting that te reo Māori markers could be reconsidered in future.
Fraud risks minimal
Critics of the law change have expressed concern about potential misuse of the streamlined process to commit identity fraud, given a person can amend their registered gender more than once.
In a September briefing, officials said there was a low risk of self-identification leading to such fraud, given people could already do that by stealing another person’s identity information or using counterfeit documents.
Consideration was given to requiring a referee or developing an additional checking process for those changing their gender an additional time, but the Government opted to do nothing given the existing protections and low level of risk.
The briefing noted the risk that any fraud committed through the self-identification process could “unfairly reflect on the transgender community” and undermine the use of birth certificates as proof of identity, and said the issue could be revisited if there was evidence of greater fraud risks than anticipated.
In a statement, Internal Affairs Minister Barbara Edmonds (who replaced Tinetti in the role earlier this year) told Newsroom the Government was “committed to making sure we have the best process for transgender, non-binary and intersex New Zealanders to formally acknowledge their gender”.
“The self-identification process comes into force in June 2023, and my immediate priority in this area as minister is to ensure the regulations are completed by that time, so people can have their applications progressed.”
“When people born overseas have no official documentation from their country of origin or from New Zealand with their correct name and gender, it places significant barriers when they attempt to access services, including health services.” - Jack Byrne, Professional Association for Transgender Health Aotearoa
Jack Byrne, the co-chair of the Professional Association for Transgender Health Aotearoa’s policy and advocacy committee, told Newsroom the organisation was pleased with the Government’s focus on accessibility for young people who wanted to change their gender.
Byrne said it was important to develop a solution for New Zealanders born overseas, such as refugees and asylum seekers, who were unable to have their birth certificates changed through the new process.
“When people born overseas have no official documentation from their country of origin or from New Zealand with their correct name and gender, it places significant barriers when they attempt to access services, including health services.”
The association supported a proposal from advocacy group Rainbow Path to give trans and intersex refugees, asylum seekers and migrants access to an official New Zealand identity document with their correct name, gender and photo.
