On December 9, 2021, the New Zealand Parliament unanimously passed the Births, Deaths, Marriages, and Relationships Registration Bill, which will repeal and replace the Births, Deaths, Marriages and Relationships Registration Act 1995. Among other matters, the bill “changes the process for amending the sex shown on a birth certificate from one which requires people to go through the Family Court – including appearing before a judge and disclosing private medical information – to a simple self-selecting administrative process.” The relevant provisions will come into force in 18 months, with consultation on regulations to begin in 2022. Currently, people are already able to self-identify their sex on other identity documents, such as driver licenses and passports, through an online application process.
The minister of internal affairs stated that the law change “will make a real difference for transgender, non-binary, takatāpui and intersex New Zealanders.” It will mean that “New Zealanders will no longer require proof of medical treatment or need to persuade a court to have the sex on their birth certificate match the gender they know themselves to be.” Furthermore, “[t]he changes will also support young people to make their own decisions about how they are identified on their birth certificates. It gives them agency over their identity, which will promote their mental health and sense of well-being.”
Background to the Bill
The original bill was introduced in 2017, but was put on hold in February 2019 following a proposal during the select committee process, in response to a petition, to amend the bill to include the relevant changes. At that time, the then-minister of internal affairs stated that the significant changes related to gender self-identification occurred without adequate public consultation, creating a “fundamental legal issue.” She acknowledged problems with the current system for changing sex information on birth certificates, including financial barriers from fees and the costs of obtaining medical evidence or legal representation, and that “[t]he Family Court process can also be time consuming and present dignity barriers for some applicants. Many individuals find the court process adversarial and intimidating and the medical evidence requirement invasive.”
In August 2019, the government announced that the registrar general would waive the fees associated with applying to change the registered sex on a birth certificate. In addition, a Working Group for Reducing Barriers to Changing Registered Sex was established to “provide advice to the Minister of Internal Affairs on operational improvements to the current process to change registered sex on birth certificates.” The Working Group made a number of recommendations to the government in a report completed in early 2020, and the government responded to the report in April 2021. At that time, in addition to stating that it would implement most of the recommendations, the minister of internal affairs said that the government was progressing work on the bill with the hope of passing it before the end of the year.
Under the new provisions in the bill, sections 22A to 22H, regarding registration of a person’s nominated sex, individuals may apply to the registrar general for registration of their nominated sex if their birth is registered under the act and they are 16 years of age or older. A guardian can apply for registration of a child’s nominated sex with the child’s consent. (s 22A.) The application for registration must “specify male, female, or any other sex or gender specified in regulations,” and include a statutory declaration verifying that the applicant identifies as a person of the nominated sex and understands the consequences of the application. If the person is aged 16 or 17, the application must also be accompanied by the written consent of their guardian, or a letter of support from a “suitably qualified third party” that confirms the third party believes that the person understands the consequences of the proposed registration and that the person’s preference is for the nominated sex to appear as the registered sex on their birth certificate. (s 22B.) Requirements for a statutory declaration and for a letter of support from a third party apply with respect to applications by a guardian for the registration of a child’s nominated sex. (s 22C.)
Any birth certificate issued after the registration of person’s nominated sex must “contain the information that it would have contained if, at the time of that registration, (a) the person’s nominated sex had always been their registered sex; and (b) the person’s associated name had always been their registered name.” (s 22E(1).) The certificate must not contain any information that may indicate that a nominated sex has been registered for that person. (s 22E(3).)
The regulations to be developed under the new legislation will
- determine who is a suitably qualified third party to support applications for young people
- find a way to make sure the sex markers available for the birth certificate include non-binary and cultural options
- determine any additional requirements for anyone seeking to amend their registered sex more than once.