Image of one hand grasping at another hand reaching up from below, implying solidarity and mutual aid, set against a blue background with Pacific art patterns. Art commissioned from Huriana Kopeke-Te Aho

Everyone Has The Right to Self-Identify Their Gender

Everyone has the right to self-identify their gender, not just people born here. Organise Aotearoa and Tāmaki Makaurau Anarchists call on the government to amend the Births, Deaths, Marriages, and Relationships Registration Bill to be inclusive of overseas-born people residing or seeking residence in New Zealand, regardless of a person’s race, ethnicity, migration status, or place of origin. The Government should make the bill inclusive by extending self-identification to citizens by grant, migrants, residents, refugees, and asylum seekers through issuing secondary or evidentiary certificates supplementing any foreign birth records or travel documents, and permitting amendment of any New Zealand-issued official documents such as a visa or citizenship certificate. We also call on the public to make submissions on the bill in support of these changes.

The right of self-identification of their gender is important for all people. Cis and endosex people, whose gender identity is affirmed by default, can often go about their lives with no consideration of it. However, for trans, non-binary and intersex people, barriers to gender self-determination are symbolic of their otherness to the rest of society and often have harmful material consequences. Being able to change identity documents to reflect one’s gender identity is an important part of gender self-identification. 

Currently, for someone to change their birth certificate sex marker to reflect their gender identity, they must go through a long, painful and costly procedure of getting it changed through the Family Court. The Births, Deaths, Marriages, and Relationships Registration Bill would change this, making it easier and more direct through a statutory declaration process, an important step towards dismantling the barriers to gender self-determination. However, in its current form, the bill unnecessarily excludes people who do not have a New Zealand Birth Certificate. The bill must be changed to account for overseas documents or allow for a Recognition of Details Certificate. All people have a right to gender self-identification, not just people born here.

Making this bill more inclusive could be achieved in several ways. One option is accounting for overseas documentation as is already done when making name changes for people with foreign birth certificates.  Alternatively, it could allow for the issue of a “Recognition of Details Certificate” or a similar document that might affect a change of details that applies to all documents that cannot be originally amended, at least within New Zealand’s jurisdiction. Either of these options would help ensure that everyone in Aotearoa could self-identify their gender.

In its current form, the bill will not ensure that everyone in Aotearoa has the right to self-identify their gender. This is racist as the exclusion of overseas-born people affects migrants of colour the most. The majority of NZ-born people, those who therefore benefit from the proposal, are Pākehā. The majority of overseas-born people, who are left behind by the proposal, are non-white. Therefore, the bill’s denial of the right of overseas-born people to have their gender self-identification legally changed is a form of xenophobic and racist discrimination. In addition, overseas-born people also depend on various non-birth-certificate documents, unlike NZ-born people, such as citizenship certificates, visas, foreign passports and travel documents. Allowing changes to these documents sex markers should be included in the bill so that everyone in Aotearoa can self-identify their gender.

The exclusion of people without New Zealand birth certificates is also transphobic,  as the existing laws allow certain provisions for documentary status changes across borders, such as name changes and marriage dissolution (among others). In addition, existing cross-border provisions tend to benefit cisgender people coming from overseas. Similar cross-border provisions for sex marker changes would mainly benefit trans, non-binary and intersex people coming from overseas. Cross-border provisions for sex marker changes only are specifically disallowed by the proposal, making it intersectionally transphobic within the context of excluding overseas-born people.

The bill’s racist and transphobic exclusions are entirely unnecessary. This is because there is an existing provision in the BDMRR Act itself for name changes contrary to overseas-issued birth certificates (the original name record). In addition, assigned-at-birth sex markers are given on the same document (birth certificate) as the name at birth which can be changed under the existing BDMRR Act. If a cross-border name change contrary to a foreign birth certificate can be supported by existing law in the BDMRR Act, a change to the adjacent sex marker should also be possible to support. Overseas practices also offer another feasible solution through documents like a “Recognition of Details Certificate”, as in some Australian states and territories.

By implementing the proposed amendments, the right to self-identify their gender will be guaranteed to everyone in Aotearoa. Failure by the Government to implement the proposed amendments will demonstrate that their claims to being anti-racist and supporting queer communities are nothing more than rhetoric.

We have come to this position following extensive discussion within our membership, particularly with our queer members. We have been unable to consult queer groups regarding this position for reasons of time constraints and capacity.