A primer on the BDMRR Bill and arguments against it

Image result for trans new zealand
Image courtesy of Gender Minorities Aotearoa https://genderminorities.com/2018/05/18/transgender-posters-new-zealand/

Background

New Zealand’s Births, Deaths, Marriages, and Relationships Registration (BDMRR) Bill proposes to allow trans, non-binary, and intersex people to change their gender marker on their birth certificate through statutory declaration. A statutory declaration is a legal process whereby you provide a written statement of fact, witnessed by a Justice of the Peace, solicitor, notary public, or a Registrar or Deputy Registrar of the courts. A statutory declaration must be correct — it is a crime to make a false declaration.

Statutory declarations are used for many things, including residency applications, formation of societies, unions, and charitable trusts, and other forms of ID such as passports and drivers licenses.

This change seeks to align the birth certificate process to the process for drivers licenses and passports.

These changes were a result of extensive consultation during the BMDRR bill’s select committee process, where feedback was provided from both trans, non-binary, and intersex people, and opponents to the changes.

Why is it important?

There are some circumstances in which a person may be required to provide their birth certificate to accompany another form of ID like a passport or drivers license in order to prove an identity is valid. These include financial processes like opening a bank account, getting a mortgage, loan, or credit card. Sometimes, employers ask for a birth certificate during the hiring process.

In addition to this, the gender marker on your birth certificate is used for other important documentation such as your marriage certificate and death certificate. Having an incorrect birth certificate gender marker means your marriage certificate will also state your gender incorrectly.

Due to the issues trans people can face during employment and financial processes, and/or a desire to merely have accurate documentation that matches their lived experience, some trans people want to update their birth certificates. Currently, it’s a time-consuming and expensive process to update your birth certificate gender marker, costing upwards of $4000 to get medical documentation and pay legal fees. Many trans people cannot afford this.

It’s also an important recognition of the fact that Māori and other pacific peoples have long recognised that gender is more fluid than the binary system we allow.

According to the Department of Internal Affairs,

A New Zealand Birth Certificate is an official document containing registered information about a person’s birth as at the date of issue. A birth certificate can only be used as evidence that an identity exists. The birth certificate should not be used as the sole form of evidence for asserting an individual’s identity, as it does not provide any link to the person presenting it.

Birth certificates are public record in New Zealand, any unless you block access because you’re at risk, anyone can see them. One of the few exceptions is accessing a trans person’s birth certificate with their previous gender. This wide access is one reason why birth certificates are not considered stand-alone identification.

You can read more about the bill and why it’s important in this excellent piece from Gender Minorities Aotearoa.

Who is angry about this?

It seems pretty reasonable, right? A change to align identification, make life better for trans, intersex, and non-binary people, and honour the Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW), which affirms trans women as a protected sex class.

However, a small group of people in New Zealand who call themselves ‘Gender Critical Feminists’ but are more commonly known as Trans-exclusionary radical feminists (TERFs) or Trans-exclusionary separatists (TES) have protested the changes. These people formed a group called ‘Speak Up for Women NZ’.

Online, a lot of their support comes from people who share their beliefs in the UK, where this dangerous ideology has taken hold. Many of the people protesting the bill were not NZ residents or citizens, and instead live in the UK. There were concerted online campaigns for UK GCFs on Twitter and Mumsnet, a website well known for its GCF position, to email NZ MPs.

They do have local support from a small group of (mostly) older, white men in journalism, and some older, white women, especially lesbian women. I’m going to use their own term for their group because I am tired of them dismissing any argument that uses the term ‘TERF’ purely on that basis.

What are they angry about?

The group claim that insufficient consultation has happened, despite the bill going through the standard select committee process, and members of their group submitting multiple times (as outlined above). They also claim that women will be harmed by the bill.

Many people consider their anger to be merely transphobia, however the group raise a number of points in their arguments. So, let’s examine the how factual those arguments are.

The claim: There’s a Supreme Court Ruling

The key argument:

The UK House of Lords/Supreme Court said self-ID was bad in 2003 and it might affect things like marriage rights, sports, and gender-specific law.

Reality

The (now very old) 2003 ruling is specifically focussed on UK law, and GCF’s reliance on it highlights how much of this campaign is driven and supported by UK-based people. It specifically focusses on the effects on UK law, including things like marriage access. Many of these things are not a concern in New Zealand — they are not our laws, and we already have things like marriage equality. They also touch on professional sports, which is a topic that professional sporting bodies such as the IOC already have policies for.

Feminists in NZ would welcome work on gender-specific laws. For example, it seems ridiculous that rape in New Zealand is only considered to be penetration with a penis. And laws such as abortion law that talk about women should absolutely be updated to talk about pregnant people. None of these changes preclude making it easier for trans, non-binary, and intersex people to change their birth certificate markers.

The claim: Shared facility danger

The key arguments:

  • It encourages mixed gender changing or bathroom facilities.
  • Self-ID means malicious men could simply declare themselves female and use it to infiltrate women’s facilities

Reality:

The bill does not encourage or require mixed gender bathroom and changing facilities. Trans, non-binary, and intersex people merely want to be able to use facilities that best align with their gender, and in fact, do so already.

Many GCFs also cite a Freedom of Information Act data release reported in The Times in the UK stating that just under 90% of sexual assaults, voyeurism and harassment took place in unisex facilities, however this legislation is not about unisex facilities, nor does it propose them, so this point is irrelevant.

There are no changing facilities (that we are aware of) where any form of ID is checked upon entry to the facility. Should ID be demanded, the vast majority of people would provide their passport or drivers license — both of which are able to be changed by statutory declaration, and are considered the gold-standard for verifying identity in New Zealand.

This means that even if IDs were checked, if a malicious male wanted to commit a crime by making a statutory declaration about his gender, he’d be far more likely to make it using passport or drivers license. Given we already have statutory declarations for passports and drivers licenses and have not seen a swathe of men doing this, it’s clearly a specious argument.

In fact, several US states, including Oregon, Rhode Island, and Vermont have stated there has been no increase of bathroom sexual assaults since they introduced laws protecting transgender people’s rights to use the bathroom facility that aligns with their gender.

Another example stated by GCFs is that of a man in Ontario, Canada, who disguised himself as a women and attacked women in shelters. However, this happened before any laws protecting trans people were introduced. In New Zealand, refuges already accept women based on their stated gender, not their birth certificate.

Presently, clubs, agencies, schools, and female-only service providers do not rely on birth certificates to identify gender, and instead, use more common forms of ID like passport or drivers license, or merely trust the declaration of the person in front of them.

The claim: Prisoners at risk

The key argument:

Putting trans women in prison with cis women increases the risk of sexual assault on the cis women.

Reality:

Currently, trans women are most often housed with cis men, thanks to an archaic policy of the Department of Corrections whereby birth certificates are used to identify prison location. Thanks to recent changes, they can request a change in location, but it isn’t the default. Through the excellent advocacy of People Against Prisons Aotearoa, we know that trans women in male prisons are often themselves sexually assaulted.

The real point, though, is that prisoner safety has nothing to do with which prison a prisoner is sent to, and therefore nothing to do with birth certificates. A prisoner should always be housed in the facility that matches their gender identity, and within that facility, the same care should be taken to ensure prisoner safety regardless of gender.

In prisons, there are women who assault women, there are men who assault men, and there are trans people who assault others. It is the responsibility of the prison system to ensure safety. It is not right to punish and put every trans woman prisoner at risk simply because the prison system cannot do what it is responsible for — identify actual risk and act accordingly to keep people safe.

GCFs state no data regarding the New Zealand system, instead, relying on data from the UK to support their claim that all trans prisoners should be held in prisons that do not match their gender, regardless of the risk profile of the prisoner themselves. They raise points that there is a larger number of prisoners who want to transition. We welcome further studies on this phenomenon, but do not see it as a reason to treat all trans women poorly, instead of handling their cases on an individual basis by assessing risk, as is appropriate.

The claim: Sports

The key argument:

Allowing trans women to compete in sports with cis women isn’t fair on cis women.

Reality:

This has nothing to do with birth certificates. Birth certificates are not used to identify people who play sports at casual levels. Professional sports people are tested for hormone levels to identify whether they can compete. Here’s what the International Olympic Committee says, for example. It’s not based on birth certificates, so it’s not relevant.

The claim: sex-based rights and protections

GCFs highlight several issues, I’ll address them one by one

Access to single sex spaces and institutions such as changing rooms, girls’ schools, women’s shelters, rape crisis centres, Girl Guides, women’s prisons.

We’ve already talked about some of these, but many girls schools already accept trans girls (many of whom are on puberty blockers to prevent onset of puberty). Girl Guides already accept trans girls. Women’s shelters and rape crisis centres already accept trans women. Also, access to organisations like Guides and Refuges is based on those organisations’ policies, not by birth certificates.

Meaningful records and statistics somehow being affected.

The DIA has stated they do not consider the expected volume of changes to affect statistical accuracy. Should this change, one would expect them to work with Stats NZ, as our official government statistical agency, to ensure accurate records are kept. In fact, trans, intersex, and non-binary people have been crying out for better statistical standards and data collection to reflect their lives.

Allocation of public resources

No argument has been made about this other than a bullet point.

Female-only scholarships and quotas

Trans women and girls are women and girls, so this seems to be a specious argument. In addition, the proportion of women and girls who are trans is thought to be less than 2%, so it shouldn’t have a material impact across the board.

Intimate searches

Again, no clear argument has been made, but intimate searches are one of the most feared things for trans women as they are often assaulted or ridiculed. Trans women should have the right to be searched by a woman, regardless of their medical transition state.

Caregiving

Once again, no argument other than a bullet point has been made, but New Zealand’s legislation around parental leave, domestic purposes benefits, and similar, has long been gender neutral. If it refers to aged care, then trans people should have the right to be cared for by a caregiver of their choosing, same as anyone else.

Counselling services

Counselling services for women already accept trans women patients

Sports teams

As outlined above, sports teams at low grades don’t typically use birth certificates as ID, and to do so would be contrary to DIA’s stated position on birth certificates being used as ID. Sports teams at senior grades rely on hormone tests.

TL;DR

Gender Critical Feminists are angry because there is a bill designed to make it easier for trans, non-binary, and intersex people to correct their birth certificates. Birth certificates are not used for ID for the majority of things GCF are worried about, and are therefore unrelated issues. The few they are used for, such as prisoner allocation, are being used to punish all trans women for the inability of the prison system to assess risk and protect inmates.

Allowing trans people to change their ID by statutory declaration aligns with existing processes for passports and drivers licenses, and makes employment, financial processes, marriage, and death less traumatic for trans people. It is a human rights issue.

The only real impact of this on GCF is that they will no longer be able to use the births register to out trans people.

What can I do about it?

Recently, Tracey Martin, the minister in charge of the bill, has stated she will delay the bill thanks to lobbying from gender critical feminists. This delay is harmful to trans, non-binary, and intersex people. If you disagree with the delay and support the rights of trans, non-binary, and intersex people, I encourage you to email your MP and Tracey Martin. You can use this template and you’re welcome to copy anything I’ve written here. It only takes 5 minutes.

An earlier version of this post referenced Gender Minorities NZ’s history of SUPW members. That history has been removed as I cannot independently validate it.