Petition 2014/86 of Allyson Hamblett

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1 Petition 2014/86 of Allyson Hamblett Report of the Government Administration Committee Contents Recommendation 2 Nature of the petition 2 The process of changing sex on a birth certificate 3 Current process involves both Family Court and Registrar 3 Medical evidence requirements 3 Amending section 28 of the Act 4 Citizenship certificates 4 Conclusion 4 Appendix 6

2 Petition 2014/86 of Allyson Hamblett Recommendation The Government Administration Committee has considered Petition 2014/86 of Allyson Hamblett and recommends that the Government: instruct officials to review section 28 of the Births, Deaths, Marriages, and Relationships Registration Act 1995 (BDMRRA) with a view to amending it to an approach predicated on self-identification amend the Citizenship Act 1977 to ensure that changed citizenship certificates would be considered legal. Nature of the petition Allyson Hamblett s petition was presented to the House on 25 October It requests: That the House note that 53 people have signed a petition calling on the Minister of Internal Affairs to enable adults with intersex conditions and trans and other gender diverse adults to change the sex details on any official documentation to male, female or indeterminate based solely on the individual s self-identification, without any requirement for medical treatment and without the need to resort to a court process. In a follow-up written submission, the petitioner makes the following specific recommendations: That the process for recording sex details on official documentation be changed from the Family Court to the Department of Internal Affairs (DIA), to make it a more administrative process, with DIA developing a Declaration as to Sex application form. That applicants be allowed to self-identify. That all applications be processed promptly. That the Citizenship Act 1977 be amended to ensure that changed citizenship certificates are legal. Our approach in considering the petition To assist us in considering the issues raised by Ms Hamblett, we sought advice from the Department of Internal Affairs. We also invited the Human Rights Commission (HRC) to submit its views on the petition. We note that the commission carried out an inquiry into discrimination experienced by transgender people in Its report, To Be Who I Am, was published in

3 The process of changing sex on a birth certificate PETITION 2014/86 OF ALLYSON HAMBLETT The petitioner s main concern is about the process adults must go through to change the information about their sex recorded on their birth certificate. This process is set out in section 28 of the Births, Deaths, Marriages, and Relationships Registration Act 1995 (BDMRRA). The petitioner has concerns for intersex, transgender, and gender diverse people, who go through a particularly convoluted process, according to Ms Hamblett. She would like to see the process simplified, and recommends that applicants be allowed to self-identify. Current process involves both Family Court and Registrar Currently, the process of changing the sex on a birth certificate involves both the Family Court and the Registrar-General in the Births, Deaths and Marriages office within DIA. The Family Court can make a declaration that the sex on an applicant s birth certificate be changed to the applicant s chosen sex. If the applicant s birth is registered, or is registrable under the Act but not yet registered, a copy of the application will then be served on the Registrar-General, who can record the information on the applicant s birth certificate. In its submission, the HRC noted that the changing of an adult s sex information on a birth certificate is therefore a two-step process that traverses from the courts to the bureaucracy, with an associated impact as to efficiency and cost. 1 In response to this recommendation, the department said that it and the Registrar-General are bound by the provisions of the BDMRRA. Neither the Minister of Internal Affairs nor the Secretary for Internal Affairs can direct the Registrar-General in the exercise of his independent statutory role. 2 Medical evidence requirements Section 28 of the BDRRMA requires that, in almost all cases, an applicant must provide expert medical evidence in support of their application. To grant a declaration, the Family Court must be satisfied that the evidence shows that the applicant: has assumed (or has always had) the gender identity of a person of the nominated sex; and has undergone such medical treatment as is usually regarded by medical experts as desirable to enable persons of the genetic and physical conformation of the applicant at birth to acquire a physical conformation that accords with the gender identity of a person of the nominated sex; and will, as a result of the medical treatment undertaken, maintain a gender identity of a person of the nominated sex. According to the HRC, this creates a high evidential threshold requiring significant medical and legal scrutiny. It noted that many trans people have interpreted section 28 to mean that full gender reassignment surgery is required before a declaration of sex will be made. 1 Human Rights Commission, Submission to the Government Administration Select Committee, p Department of Internal Affairs, Initial Briefing, p. 3. 3

4 We were told that the Family Court has grappled with the medical evidence requirements of section 28 in Michael v Registrar-General of Births, Deaths and Marriages and subsequent cases. The DIA considers that these decisions confirm that there is no requirement for any surgery before a section 28 declaration can be issued. However, in the view of the Human Rights Commission, the combined effect of these cases is that surgery still remains a threshold factor for a successful application. Therefore, a barrier still remains for trans people in the process of changing information on a birth certificate. Amending section 28 of the Act The HRC says that the section 28 procedure is now an outlier. This is because the process of changing information on a passport and drivers licence has changed in recent years. In its view, these changes support the argument of amending section 28 and removing the Family Court declaration from the process. This would result in a more consistent approach to changing gender identity markers on official documentation, and move towards the right of the individual to self-identify. Ms Hamblett gave the example of the Gender Identity, Gender Expression and Sex Characteristic Act 2015 (GIGESC Act) currently in use in Malta. This Act removes the need for the applicant to seek medical advice, and eliminates any psychiatric, psychological, or medical records from the process. This model is based on the self-identification and self-determination of the applicant. DIA said that because a birth certificate involves core identity information, any potential law change has wide-ranging implications. A birth certificate forms the basis for information on other official documentation, such as passports and driver licenses. Passports and driver licenses are considered transactional documents that involve less formal processes than section 28. Unlike a registered birth record they can be revoked. The department added that the possibility of legislative change has been raised a number of times with successive Ministers of Internal Affairs. However, the department has not been asked to investigate any further. Citizenship certificates Ms Hamblett also recommends the amendment of the Citizenship Act 1977 to ensure that changed citizenship certificates would be considered legal. Currently, when personal information changes, any citizen can apply for an evidentiary certificate to confirm their citizenship status, and which will reflect their updated personal information. Advice from the Department of Internal Affairs DIA accepts that there is legal uncertainty around how citizenship certificates can be amended for transgender people. Although the Act does not currently provide for the issue of amended citizenship certificates, the office has issued evidentiary certificates which is a separate legal document on compassionate grounds in some cases. Conclusion We commend the petitioner, who has gone to great effort and spent a significant amount of time in presenting her requests and outlining the current legal position. We appreciate 4

5 the petitioner s desire for the system to allow for self-identification, rather than having information on birth certificates imposed by others. We agree that a more streamlined administrative process would be preferable to the current two-step process. We do not consider that using the Family Court in this process is either appropriate or a good use of its time. Ms Hamblett suggests that the process for changing the sex on a birth certificate should be an administrative rather than a judicial process. She therefore recommends moving the process away from the Family Court, to DIA. She suggests that DIA could develop a more streamlined application process and then instruct the Registrar-General accordingly. We note that calls to simplify the process and address the discrimination experienced by transgender people date back ten years to the important inquiry by the HRC in Since then some progress has been made in changing information on passports and driver licenses. However, we note the comment by the HRC that the section 28 procedure is now an outlier, and agree it is time for the BDMRRA to be updated to bring it into line with passport and driver licencing requirements. We recommend that the Minister of Internal Affairs instruct officials to review section 28 of the BDMRRA with a view to amending it to an approach predicated on selfidentification. We suggest that the review should take into account the process and requirements in other jurisdictions, in particular the GIGESC Act in Malta. We further recommend an amendment to the Citizenship Act 1977 to ensure that changed citizenship certificates would be considered legal. 5

6 Appendix Committee procedure Petition 2014/86 of Allyson Hamblett was presented to the House on 25 October We met between 15 February and 9 August 2017 to consider it. We received written submissions from the petitioner and the Human Rights Commission. We also heard oral evidence from the petitioner. We received advice from the Department of Internal Affairs. Committee members Hon Ruth Dyson (Chairperson) Barry Coates (Deputy Chairperson) Matt Doocey Paul Foster-Bell Hon Nanaia Mahuta Hon Scott Simpson Jan Logie replaced Barry Coates for all consideration of this item of business. 6