Sex marker change should not be up for debate? What social workers need to know

A guest post by Kendra Cox and Eileen Joy, University of Auckland

On February 25th, Tracey Martin, the Minister for Internal Affairs, announced that the much-anticipated Births, Deaths, Marriages and Relationships Registration Bill (‘the Bill’) has been parked until further notice. The Bill contains, among other small changes to deaths and divorces, a number of amendments to the current Act that would make it significantly easier for transgender, non-binary, gender diverse, and intersex people (‘gender diverse and intersex people’) to change the sex marker on their birth certificate to better reflect who they are. According to a Parliamentary press release, the Bill was deferred to clarify some legal concepts and to increase public consultation. There has been some talk over the fact that after public consultation—a standard select committee process—the specific section relating to sex self identification was added. This type of addition (specifically ss22A-J), after public consultation is completely normal, and reflects a democratic process whereby the committee responded to a large number of submissions who requested this change.

Many of us don’t have to worry about the sex marker that’s on our official documentation, but for the gender diverse and intersex people in our communities, this deferral of the Bill is a serious blow. An ongoing campaign by anti-transgender groups that have attempted to send Aotearoa into a moral panic about the Bill—and about gender diverse people in general—has likely influenced Parliament’s decision about halting its process through the legislature.

The current version of the Act requires people over 18 to apply to a Family Court Judge and provide ‘expert medical evidence’ of ‘medical treatment’ that enforces a binary, Western, bio-medical understanding of what ‘men’ and ‘women’ should look like (the Act, s28[3][c][i][A-C]). The level of medical evidence required under the Act is not clear in the legislation, but includes a certain amount of time on Hormone Replacement Therapy, and usually some amount of gender affirming surgery, both of which are only considered enough at the discretion of at least one medical expert and a Judge. The process for children and young people was similar, but of course included the consent of their guardian (s29).

Sections 22A-J of the Bill would make it more straightforward for our gender diverse and intersex people whānau choose for themselves what sex is recorded on their birth certificate. The new process would require an adult to make a statutory declaration that they are the sex they want to be recorded on their birth certificate, which would be broadened to include ‘intersex’ and ‘X (unspecified)’ as well as ‘male’ and ‘female’ (s22[b]). This change would make the process more in-line with how gender diverse and intersex people already change the sex marker on their passport. The process for children and young people under 16 will be similar, but would also include the consent of their guardian, as well as affirmation from a medical or health professional that the sex marker change is in the child or young person’s best interests (s22[c][2]). Children and young people under 16 are required to affirm or reject this change six months after they turn 18 (s22[e]).

Why is this important?

The removal of a Judge’s tick and the requirement for medical evidence is a huge step forward, and brings Aotearoa in line with many other countries. The reality of attaining gender affirming healthcare for gender diverse and intersex people is sobering. Before the cap on publicly funded gender affirming surgery was lifted in 2018, only a small handful of people could receive these procedures each year. However, there is still a significant backlog of applicants that may take decades to clear, as our number of surgeons who can complete some surgical procedures is abysmally low.

To even get to the point of having approval for gender affirmation surgery a gender diverse or intersex person and/or their caregiver usually needs to have paid for psychiatrist appointments, blood tests, and endocrinology appointments. This takes time and commitment, over years, and is anything but an overnight decision. The medical processes around gender affirming healthcare are complex, and many clinicians lack a complete knowledge, as told by gender diverse and intersex people in the Out Loud and Rainbow Communities submissions to the Mental Health and Addictions Inquiry last year. Several District Health Boards have now created pathways for gender diverse people in the last few years, demonstrating how complicated and involved this process is.

Gender Minorities Aotearoa, a support and advocacy community group for gender diverse people, point out that the cost of a lawyer to present your application with the Family Court can cost up to $3000. This cost is made even more difficult to sustain by the fact that gender diverse people tend to be some of the most monetarily deprived in our communities (the research on this in Aotearoa is limited, but for an idea see here and here) due to stigma and discrimination. Employment and housing discrimination, a lack of family and community support, and relatively high levels of mental distress can both cause and exacerbate this. This marginalisation is because of the way society is structured to uphold and reproduce gender and sexuality norms, and not because of identity.

It is important to recognise that not every gender diverse person wants or needs medical intervention. Some people might want Hormone Replacement Therapy to redistribute their hormonal balance, but might not want surgery. Some people might not want any hormonal or surgical intervention at all. All of these people are still the gender or sex they say they are. A highly-medicalised view of gender diverse people is not liberatory, and reinforces a Western gender binary. As long as people have lived on these islands, there have been takatāpui, tāhine, and tangata ira tāne people who don’t fall into this binarist framework. As long as people have lived across Te Moana-nui-a-Kiwa, there have been people who don’t fall into this binarist framework. Some of these people will need medical care to live well, and some will not. It should not be up to the rest of society, and certainly not up to our legal system, to determine what those needs are.

Fundamentally though, you have to ask, how can a Judge know a person’s sex or gender? People are the experts on their own lives.

How does this relate to social work?

 Social workers help support some of the most economically and socially deprived people in our communities. Gender diverse people are over represented in this demographic. Unfortunately, many of our social services are not properly resourced, nor do their staff have the appropriate training, to be able to sensitively respond to gender diverse and intersex people’s needs. Add to this the fact that many social service organisations are church based, and gender diverse people have faced (and continue to face) exclusion and transphobia from some religious communities and representatives, and we are left with a situation where social workers might not be geared up to supporting some of the most vulnerable members in our society.

Social work is inherently a profession that works for social justice and human rights. Social workers need to be at the forefront of advocating for and supporting our trans, gender diverse and intersex whānau. Section 22A of the new bill says that registered social workers – as well as registered psychologists, nurses and counsellors – can be one of the health professionals able to advocate for sex marker change. This is a huge step in the right direction as psy-professionals and endocrinologists can be be prohibitively expensive.

What can YOU do, as a social worker, or a social work educator to help?

  1. Educate yourself. Start with the resources we have listed, work through those. Talk to gender diverse and intersex people you may know – although please don’t expect them to do all the work for you, most experience exhaustion with questions.
  2. Elevate the voices of those gender diverse and intersex people you know, let them have space to speak, to advocate.
  3. Let Tracey Martin know how wrong her deferral decision is – there is an easy guide on how to here:
  4. Stand up for our gender diverse and intersex communities, don’t just sit there as someone else makes a (not funny) joke about gender diverse people. This stuff isn’t funny and never was.

For more information please see the following links:

To help support the gender diverse community in Aotearoa, please consider making a donation here, or getting in touch with some of the community support organisations above to see how you can help.

 Ngā mihi nui to those people we consulted in the writing of this blog, your time and expertise is gratefully appreciated.

Image credit : Ted Eytan

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