What are the government’s Self-ID Proposals?

Published on: Aug 19, 2018

The current law

The Births, Deaths, Marriages and Relationships Act 1995 (‘BDMR Act’) provides for the recording and verification of information relating to births (among other things).

A birth certificate must include a record of a person’s ‘sex’.

A birth certificate is an important foundation document, and provides an official source of evidence of its contents. It also provides an important source of demographic information in relation to ‘health, mortality and other matters.’

The 1995  BDMRR Act allows small number of qualifying people to change the sex recorded on their birth certificate. This procedure is still in place.

A person wanting to changetheir recorded sex on their birth certificate has to apply to the Family Court for a declaration. They must satisfy the Court, on the basis of medical evidence, that they:

  1. have assumed the ‘gender identity’ of the opposite sex (described as the
    ‘nominated sex’)
  2. have undergone medical treatment to acquire “physical conformation that accords
    with the gender identity” of the nominated sex
  3. will, as a result of medical treatment, maintain the gender identity of the
    nominated sex.

The person applying does not necessarily need to show they have undergone full genital surgery, provided there is some permanent physical change as a result of treatment.  The Act uses the term ‘sexual reassignment’ to describe this.

The Proposals: Self-ID

The Government wants to get rid of the gatekeeping role of the Family Court, and the requirements of medical treatment and permanent physical change.

A person will be able to change the sex recorded on their birth certificate by a simple administrative process, involving a statutory declaration that they "identify" as a member of the opposite sex, intersex, or an unspecified sex, and intends to continue "identifying’’ as such.’

There is no requirement that the person undergoes any medical assessment or treatment, or even any change of appearance. A person may be male in all physical respects, and present as ‘masculine’ in appearance, yet ‘identify’ as female and be legally recognised as female.

The purpose of the proposed amendment is said to be to "allow people to have greater autonomy over their identity" and to "make it easier" for people to change their registered sex.

We recognise and respect the right of transgender (and intersex and “gender diverse”) people to live in their chosen identity, and we understand why having a birth certificate consistent with that identity is important to them. We understand why many transgender people are frustrated by the current Family Court declaration process and the need for medical assessment and treatment. But we consider there are rights and interests of other people that must also be taken into account. The Government has not taken these rights and interests into account.

Another significant proposed change: removal of protections for children

The existing procedure under the BDMRR Act allows children (defined as those under 18 years of age) to record their nominated sex on their birth certificates via the same Family Court statutory declaration process. However this is subject to a number of important protections (additional to those that apply to adults, as set out above):

  1. It must be in the child’s ‘best interests’ to be brought up as a person of the nominated
  2. The application must be made by the child’s guardian
  3. The application must be served on any other interested party (e.g. another guardian)
  4. The Court must be satisfied, on the basis of medical advice, that the child’s gonadal or
    genital development is such that it is more likely (after medical treatment) that the child
    will be able to ‘assume the gender identity’ of the nominated sex than it is that the child
    will be able to assume the gender identity of their current sex.

The Government’s proposals (as with adults) remove the Family Court’s gatekeeping function, and the need for medical treatment. These are replaced by the requirement for a ‘ recommendation’ from a ‘health professional’, which is broadly defined under the proposed Act and includes social workers, that the child understands the consequences of the application, and that it is in their ‘best interests’ to have their nominated sex registered.  The requirement that it is in the child’s best interests to be brought up as a person of the nominated sex has disappeared.

The proposals are undemocratic

We believe the way in which the self-ID proposals have come about has been profoundly
undemocratic. The self-ID proposals were not included in the Bill when it was first introduced to Parliament on 10 August 2017.  The Bill was presented at its First Reading (on 30 November and 5 December 2017) as a straightforward, uncontroversial series of amendments to modernise and streamline the existing Act.

Even now, Parliament’s website carries a highly misleading description of the Bill,  with no specific reference to the self-ID proposals. It also implies that the Bill in its entirety follows recommendations by the Law Commission and a Ministerial review, but this is not the case in relation to self-ID.

The ‘nothing to see here’ language is carried over into the Governance and Administration Committee’s report of 10 August, where the introduction refers to ‘a small number of [unspecified] policy changes’.
The genesis of the self-ID proposals is a petition to Parliament by transgender activist, Allyson
Hamblett. The petition was signed by only 53 people.  The Governance and Administration
Committee considered this petition separately to the BDMRR Bill and reported on 11 August 2017
(the day after the original BDMRR Bill was introduced). The two are not clearly linked on the
parliamentary website, and the Committee’s 10 August 2018 report makes no reference to Ms
Hamblett’s petition.

In recommending a self-ID approach in its August 2018 report, the Governance and Administration Committee only considered submissions from Ms Hamblett, the Human Rights Commission, and the Department of Internal Affairs.

We will address the Human Rights Commission’s submissions elsewhere.

Importantly, the Department of Internal Affairs raised concerns about self-ID. The Report

“DIA said that because a birth certificate involves core identity information, any potential law change has wide-ranging implications. A birth certificate forms the basis for information on other official documentation, such as passports and driver licenses. Passports and driver licenses are considered “transactional” documents that involve less formal processes than s 28 [of the BDMRR Act 1995]. Unlike a registered birth record they can be revoked.”

We are not alone in considering self-ID will have “wide-ranging implications.” The Department of Internal Affairs agrees. Yet the Governance and Administration Committee did not request any examination of what these “wide-ranging implications” might be, or consult with potentially affected groups. Instead it directed the Department to review the BDMRR Act with a view to implementing self-ID. Is this a carefully considered policy position, or is it ideology being pushed through on an unsuspecting public?

Here is what the House of Lords (now the Supreme Court, and the most senior Court in England and Wales) has to say on the subject of self-ID:

“The distinction between male and female exists throughout the animal world. It corresponds to the different roles played in the reproductive process. A male produces sperm which fertilises the female’s eggs. In this country, as elsewhere, classification of a person as male or female has long conferred a legal status. It confers a legal status, in that legal as well as practical consequences follow from the recognition of a person as male or female. The legal consequences affect many areas of life, from marriage and family law to gender-specific crime and competitive sport. It is not surprising, therefore, that society through its laws decides what objective biological criteria should be applied when categorising a person as male or female. Individuals cannot choose for themselves whether they wish to be known or treated as male or female. Self-definition is not acceptable. That would make nonsense of the underlying biological basis of the distinction.

The circumstances in which, and the purposes for which, gender reassignment is recognised are matters of much importance. These are not easy questions. The circumstances of transsexual people vary widely. The distinction between male and female is material in widely differing contexts. The criteria appropriate for recognising self-perceived gender in one context, such as marriage, may not be appropriate in another, such as competitive sport.
[The case] raises issues whose solution calls for extensive enquiry and the widest public consultation and discussion. Questions of social policy and administrative feasibility arise at several points, and their interaction has to be evaluated and balanced.” [emphasis added]”

A contrasting approach to consultation: the UK

In July 2017 Theresa May’s government announced plans to introduce self-ID legislation. This followed a 2016 review of existing legislation by the Women and Equalities Committee.

The announcement was met with considerable public opposition, particularly from women's groups. Critics of the proposals were invited to Parliament for a meeting in November 2017. As criticism mounted, on 5 June 2018 the government was forced to clarify that it had “not yet decided” to introduce self-ID, and would consider the results of a public consultation (subsequently launched in July 2018).

The government noted it had already consulted with a variety of stakeholders including women’s groups, charities, and service providers, and was considering the experience of countries with different gender recognition models, not just those with self-ID. The government also confirmed its commitment to existing protections for women under the Equality Act, which allow provision for single and separate sex spaces.

The UK’s transparent, consultative process over many months (while not without its flaws) contrasts sharply with the undemocratic, stealth approach of the NZ Government to the issue of self-ID.