Article – Suzanne Levy
Know your rights – Self-ID in NZ
SUANNE LEVY – January 2023 – Speak Up For Women
Sex Self-ID has been one of our main topics of conversation for several years now. We know we don’t want it, we know it’s wrong, but what does it actually mean for women in New Zealand?
I’m going to attempt to unpick the New Zealand situation, which I believe is quite unique compared to other parts of the world. This is in no way a legal opinion, it is my take on things and has come about from various discussions with lawyers along with a lot of listening and reading.
What is Sex Self-ID?
This can be described in two parts:
1. Sex Self-ID in law
This is a legislative change to the way a birth certificate can be altered, it makes it easier and faster for a person to change the sex marker on their birth certificate and simply requires a statutory declaration by a person stating that they feel they are living as the opposite sex.
A statutory declaration is a serious and binding legal document and there are consequences for providing false information, but when it contains feelings it is entirely impossible to prove that a person was not feeling a particular way. The legislation will also allow for multiple changes and will not be limited to male and female.
Fortunately, the same legislation that makes it easier to change the birth certificate also brings in a new clause that makes the birth certificate less binding. (See 79. Certificates as Evidence below)
The New Zealand birth certificate is now a vanity document.
Speak Up for Women did not suggest that birth certificates should never be changed, our position was that the legislation and process should be left alone.
2. Sex Self-ID in public life
In some ways the horse bolted long before the legislation changed. The concept of sex self-ID has been infiltrating our government departments for several years, wording changes that talk about “women or anyone who identifies as a woman” are common yet have no legal backing. This form of self-ID does not involve a birth certificate, it involves a statement by one person that overrides reality and breaks the social contracts that have helped to keep women safe.
The idea that “trans women are women” has been hammered through our society to the extent that many people believe that it is a legal concept and that they have no choice but to treat trans women as women in every respect. The legal birth certificate changes cement this belief and make our job more difficult. This belief is also cemented in the minds of transgender people who are led to believe that they are legally the opposite sex.
Background and Speak Up for Women’s position
Speak Up for Women believe that sex matters. This is our core belief when protecting and fighting for the rights of women. This belief impacts our core areas of work:
- To protect single sex spaces and services that are currently legal under the Human Rights ACT 1993.
- To prevent our education professionals teaching concepts that say that sex is something that can be changed.
- To protect language that focuses on and celebrates women and the roles they play in our society.
In 1993, when the Human Rights Act was passed into legislation it would be fair to say that most people used the words sex and gender interchangeably – that is because 30 years ago, while not strictly accurate, they were almost always used to describe the same thing.
The generally accepted definition of sex is biological. SUFW believe that sex cannot be changed and we believe that the exclusions in the Human Rights Act are based on this definition of sex.
We are concerned that there are groups and service providers also who believe that sex matters but are including people who self-ID because they think it is illegal not to. In working with these groups it is interesting to see how and when they are being advised and by whom. Are sex and gender the same thing in law? Should they be? When the Human Rights Act says “sex” does it also mean “gender”?
We are aware that there are groups who wish to include people who self-ID into various categories, this is not an issue for us. The HRA was not designed to prevent inclusion.
Inclusion can mean many things. Ironically it is exclusion that creates inclusion. In sport, we make categories so that more people can be included. We have age groups so that 12 year old boys don’t play football against adult men. The exclusive categories are what make sport truly inclusive. Without them, almost every sport would be dominated by men between the ages of 20 and 30 and most others would not bother participating.
The same goes for services. Would women use a rape counselling service where all of the counsellors were men?
The real answer is that the law around discrimination on the basis of sex has not been tested in recent times, since sex and gender have come to mean very different things.
The Legal Situation
The Human Rights Act 1993
The Human Rights Act 1993 explains the situations where it is legal to discriminate, there are not many situations and it doesn’t say that you must discriminate – it simply provides the option. We are concerned with two main sections of the Act – Section 44 and Section 53.
Section 44 of the Human Rights Act 1993 covers the provision of goods and services.
These are the exceptions that we are focusing on.
45. Exception in relation to courses and counselling
Nothing in section 44 shall prevent the holding of courses, or the provision of
counselling, restricted to persons of a particular sex, race, ethnic or national
origin, or sexual orientation where highly personal matters, such as sexual matters or the prevention of violence, are involved.
46. Exception in relation to public decency or safety
Section 44 shall not apply to the maintenance or provision of separate facilities or services for each sex on the ground of public decency or public safety.
Compare: 1977 No 49 s 24(4)
49. Exception in relation to sport
(1) Subject to subsection (2), nothing in section 44 shall prevent the exclusion of persons of one sex from participation in any competitive sporting activity in
which the strength, stamina, or physique of competitors is relevant.
(2) Subsection (1) does not apply in relation to the exclusion of persons from participation in—
(a) the coaching of persons engaged in any sporting activity; or
(b) the umpiring or refereeing of any sporting activity; or
(c) the administration of any sporting activity; or
(d) sporting activities by persons who have not attained the age of 12 years.
(3) It shall not be a breach of section 44 to exclude any person from any competitive sporting event or activity if that person’s disability is such that there would be a risk of harm to that person or to others, including the risk of infecting others with an illness, if that person were to take part in that competitive sporting event or activity and it is not reasonable to take that risk.
(4) It shall not be a breach of section 44 to conduct competitive sporting events or activities in which only persons with a particular disability or age qualification may take part.
Section 53 of the Human Rights Act 1993 covers Land, housing, and other accommodation
There is one exception in this section we are focusing on:
55. Exception in relation to hostels, institutions, etc
Nothing in section 53 shall apply to accommodation in any hostel or in any establishment (such as a hospital, club, school, university, religious institution, or retirement village), or in any part of a hostel or any such establishment, where accommodation is provided only for persons of the same sex, marital status, or religious or ethical belief, or for persons with a particular disability, or for persons in a particular age group.
Compare: 1977 No 49 s 25(3)
Using section 49 as an example (exception in relation to sport) it is obvious that the reference to strength, stamina or physique is there because these are the attributes that give a male sexed person an advantage. Those same advantages would not be present in a female presenting as or identifying as a male gendered person. They are biological attributes.
The other exceptions also relate to sex differences that are not overcome or negated by a gender identity. Someone’s gender identity is subjective and in the case of the other exceptions (45, 46 and 55) which are designed to provide safety, dignity and privacy for each sex, the reality of the person’s sex is what matters.
We are entitled to believe what we see with our own eyes.
We also believe that clause 79(2) in the new legislation (Births, Deaths, Marriages, and Relationships Registration Act 2021) reflects this.
Supplementary Order Paper 59
In August 2021 Supplementary Order Paper 59 was released in relation to the BDMRR changes, we were pleased to see that a new clause was proposed, described as follows in the Explanatory Notes:
Clarification of status of birth certificates as evidence of sex and gender
New clause 80(2) clarifies that any individual, private sector agency, or public sector agency authorised or required to ascertain an individual’s sex or gender for a particular purpose may take into account matters other than the information in a person’s birth certificate in accordance with any other applicable legislation (including the Human Rights Act 1993) and the rules of the common law.
Births, Deaths, Marriages, and Relationships Registration Act 2021
Clause 80(2) survived the Select Committee process and became clause 79(2) in the Act as follows:
79. Certificates as evidence
(1) A certificate issued under this Act is admissible as evidence in any legal proceedings and is presumed, in the absence of evidence to the contrary, to be an accurate record of the information recorded in the registry as at the date of issue.
(2) Any individual, private sector agency, or public sector agency authorised or required to ascertain an individual’s sex or gender for a particular purpose may take into account either or both of the following:
- the information contained in a certificate issued under this Act:
- any other relevant information.
Our goal is to increase awareness of this clause and to provide information and support for individuals and organisations who wish to provide single sex spaces and services….
Sex, Gender and Discrimination
Commissioner CLAUDIA GEIRINGER – 16 January 2023 – Law Commission
Project Overview
The Minister responsible for the Law Commission, Hon Kiri Allan, has asked Te Aka Matua o te Ture | Law Commission to review the protections in the Human Rights Act 1993 for transgender people, non-binary people and people with diverse sex characteristics.
In January 2023, we will commence initial scoping and research to allow us to develop Terms of Reference for the project. This initial scoping stage may take several months. Once the Terms of Reference have been finalised, they will be published on this project webpage.
Which human rights will this project examine?
The Minister has asked the Commission to review the protections in the Human Rights Act for transgender people, non-binary people and people with diverse sex characteristics.
The Human Rights Act protects the right to freedom from discrimination – for example when accessing education, employment, housing, and goods and services. It also covers some associated issues (such as sexual and racial harassment).
People in New Zealand have other human rights protected by other statutes and by international law. This review will not examine those other rights and will only look at the Human Rights Act. We have not been asked to look at how transgender people, non-binary people and people with diverse sex characteristics are protected by the law more generally.
Will this project examine hate speech?
No. The Human Rights Act contains two provisions regulating speech that incites hostility towards certain groups. The Commission will be reviewing those provisions but in a separate project: on Legal Responses to Hate. We have not yet begun our work on that project.
Whether the Human Rights Act’s incitement provisions should extend to speech that incites hostility to a person based on their sex or gender identity is one of the issues that will be examined in that separate project.
What is the Law Commission?
The Commission is an independent body that reviews aspects of New Zealand law and makes recommendations to the Government to improve the law.
Most of our projects (including this one) are assigned to us by the Government. However, the Government does not direct how we carry out our projects or the recommendations we make.
You can find out more about how the Commission conducts its projects on the Commission’s website.
How long will the project take?
The Commission’s projects involve a detailed and thorough consideration of an area of law. It is not unusual for a project to take several years.
We have not yet determined the timeframes for this project. That will be one of the questions addressed during the initial scoping exercise. We generally include an expected completion date in a project’s Terms of Reference.
Can the Law Commission change the law?
No. At the conclusion of the project, the Commission will publish a final report making recommendations for law reform. It will be up to the Government whether to accept the Commission’s recommendations. You can find out more information about the Commission’s role in law reform on the Commission’s website.
Will there be an opportunity for members of the public to express their views?
Yes. The Commission’s projects generally involve extensive consultation with interested members of the public. Each project has different needs and we have not yet had the opportunity to decide on the consultation process for this project.
How can I receive updates on the project?
You can subscribe to updates on this project. Those updates will include information about the Terms of Reference and consultation process, once settled.
How can I contact the Law Commission about this project?
You can email us at sgd@lawcom.govt.nz or phone us on 04 914 4806 and leave a message on voicemail. These will be monitored.
Before contacting us, we suggest you review the Have Your Say section of the website…