Gender self-ID: What’s the issue?

Thursday Aug  6 2020

Women’s rights have been fought for and are protected in law (Human Rights Act, 1993) based on sex.

Self-ID preferences the concept of ‘gender identity’ above sex, and therefore undermines women’s sex-based rights.

“On what basis do women’s right exist, if women are no-longer the female sex? Biology is a material reality and in a sexist society, our sex-based rights matter.”

Self-ID means anyone will be able to change the sex recorded on their birth certificate via a simple statutory declaration that they “identify” as the opposite sex. Under the existing law, a Family Court declaration (made on the strength of medical evidence of permanent physical change) is required, and the Act uses the language of “sexual reassignment.”

Many people, when they hear the word “transgender,” will think it refers to the tiny number of people for whom the existing procedure was designed: people who from an early age are so uncomfortable with their biological sex (or “dysphoric”) that they risk invasive surgery and permanent medicalisation to alleviate their feelings of distress.

But this is no longer the case.

The “transgender” umbrella now includes an ever‐widening number of people: “non‐binary”, genderqueer, gender‐fluid as well as those previously known as transvestites and crossdressers etc1. Many, and possibly most, biological males who identify as transgender do not wish to alter their bodies2.

In August 2018 the Governance and Administration Select Committee proposed amendments to the Births, Deaths, Marriages, and Relationships Registration Act (known as the BDMRR Bill) to implement self-ID. Clause s 22I, within the Bill provides that despite the proposed self-ID changes “the sex of every person must continue to be determined by reference to the general law.”

This means that in theory women could still claim their right to single sex spaces and services, but in practice how is any agency, school, sports team or female‐only service provider meant to assess a person’s sex if not via their birth certificate?

A birth certificate is intended to provide an official record, and evidence of its contents. And while the Bill provides that original birth records (i.e. the records that disclose natal sex) may be accessible in certain limited situations (e.g. law enforcement), this information is not available to the providers of female‐only spaces or services. This is the issue that Hon Tracey Martin, the minister in charge of the Bill, sought clarification on from Crown Law, and following their advice – which highlighted this issue - the Bill was deferred.

“If a person is “female” or a “woman” just because they say so, then “female” and “woman” become meaningless concepts.”

Self-ID has significant consequences for women and girls in relation to:

  • Access to single-sex spaces and institutions (e.g. changing rooms, girls’ schools, women’s shelters, rape crisis centres, GirlGuiding, women’s prisons)
  • Access to single-sex services such as caregiving, counselling and health professionals
  • Meaningful records and statistics – e.g. crime, health, employment, pay gap
  • Allocation of resources
  • Female-only scholarships and quotas
  • Sports teams

For our full assessment of the potential impacts of self-ID, see our letter to Tracey Martin.

for a comprehensive view on the law, see this NZ Law Journal article.

Footnotes

2. Data is scarce (and contested), but in 2011 a UK‐based transgender organisation (Gender Identity Research and Education Society (GIRES) estimated that only 20% of transgender people were likely to seek medical treatment. https://www.gires.org.uk/wp-content/uploads/2014/09/Monitoring-Gender-Nonconformity.pdf
3. Governance and Administration Committee, commentary on Bill (at p2)
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