31 March 2023 is transgender day of visibility - an event dedicated to celebrating transgender people, raising awareness of discrimination faced by transgender people, and celebrating their contributions to society.
2023 is a significant year in New Zealand for the law as it relates to transgender people. From 15 June 2023 people will be able to change the sex on their New Zealand birth certificates using a new self identification process, rather than having to apply to the Family Court as is currently required. This will also likely include the ability to use the terms 'another gender' or 'a non-binary gender', in addition to 'male' or 'female'.
Currently, to change the sex assigned to them at birth (as shown on a birth certificate) a person must apply to the Family Court and provide medical evidence that they have undergone some form of medical treatment. The court considers each application on its merits, and if satisfied with the evidence provided by that individual, grants a declaration that the person's birth certificate should show the person's 'nominated sex' ('nominated sex' is the terminology used in the legislation, both currently and after the changes come into force). Following such a declaration, the Department of Internal Affairs updates the person's birth certificate.
The current process is often difficult for all involved, including applicants and the Family Court, and there has long been debate about whether the court process is the right mechanism for updating official identification documentation. In December 2021 Parliament decided it is not, and passed amendments to the Births, Deaths, Marriages and Relationships Registration Act 2021 (the Act) which will make it easier for people to update their birth certificates so that it matches their nominated sex.
From 15 June 2023 a person will be able to change the sex shown on their birth certificate by completing a statutory declaration and submitting it to the Department of Internal Affairs. The person must declare that they:
- Identify as a person of the nominated sex
- Understand the consequences of the application.
There are no other evidential requirements that must be met. For example, there is no requirement to have any form of medical treatment, as under the current process. When the correct declaration is made and the prescribed fee is paid (the fee is yet to be set), the Registrar-General of Births, Deaths and Marriages must then register the nominated sex.
The Act currently provides for only 'male' or 'female' as the nominated sex. However, regulations can be made to add further nominated sexes. On 7 December 2022, Cabinet agreed to allow 'another gender' and 'a non-binary gender' to be used on birth certificates under the self identification process. This will require the passing of regulations, which we understand are yet to be drafted but are planned to be brought into force with the new process on 15 June 2023.
Following a change to the nominated sex the person's birth certificate will be amended to show only the nominated sex and cannot show any information that indicates it has been changed.
As part of the new process, changes will also be made to registered name changes as they appear on birth certificates. Currently birth certificates generally show all previous names a person has registered. However, that may deadname a transgender person (ie refer to that person's name prior to transitioning, which they no longer use and/or which does not align with that person's identity). If a person changes their nominated sex using the new process, their birth certificate can be changed at the same time:
- To show only the name registered immediately before the change to the nominated sex (this will be used if the person has already changed their name to a preferred name)
- The person can change their name at the same time as their nominated sex, and the birth certificate will show only that name.
Guardians will also be able to apply on behalf of children aged 15 or under with support from a suitably qualified third party. 16 and 17 year olds will be able to apply with either guardian consent or with support from a suitably qualified third party. Cabinet has agreed that the regulations to be introduced prior to 15 June 2023 will establish suitably qualified third parties as being registered doctors, psychologists, psychotherapists, nurses, social workers, counsellors, and a person (aged 18 years or older) that has known the child or young person for at least 12 months.
This is a significant change in New Zealand law as it relates to transgender people. From 15 June 2023 the process will be considerably easier for people and will be based on how a person identifies, rather than requiring a court process with eligibility criteria and requisite evidence of medical treatment.
