Births, Deaths, Marriages and Relationships Registration Bill to be deferred

Internal Affairs Minister Tracey Martin announced today that the Births, Deaths, Marriages, and Relationships Registration Bill will be deferred to deal with problems caused by the select committee process.

“The Bill began as a simple measure to update the previous legislation and develop new digital and online channels to access births, deaths and marriages information,” says Ms Martin.

“However, significant changes were made to the Bill by the select committee around gender self-identification and this occurred without adequate public consultation.  This has created a fundamental legal issue.”

The Minister said that no-one would lose any current rights from the delay of the Bill and she wanted to make it easier for people to formally acknowledge their identified gender.

“I fully support clarifying this process, but we have to make sure that democratic principles are followed. Given the significance of the changes, there has been inadequate public consultation.”

Changes made at the select committee introduced clauses allowing individuals to change the sex on their birth certificate via an administrative process based on self-identification. This is a substantial change from the current Family Court process that requires evidence of medical treatment.

“The self-identification clauses were added at Select Committee, after submissions on the Bill closed, meaning stakeholders may have missed an opportunity to comment,” the Minister said.

In other jurisdictions there has been extensive consultation on this issue. For example, in England and Wales there was a submission period of almost four months.

“There are also wider legal implications of changing to a self-identification system that need further consideration. The Crown Law Office have provided advice that the self-identification clauses would benefit from clarification. This includes making clear the circumstances where a person’s sex or gender identity might need to be determined independently of the sex shown on their birth certificate and how this should be determined (e.g. enrolment in single sex schools, accessing services at women’s refuges, and the criminal justice system).

“Deferring the Bill will allow for more comprehensive consideration of the legal implications of this issue and formal public consultation.”

The Minister said that while this legal process was undertaken, she would lead work to make practical improvements to the current process.

“I acknowledge that the current process presents barriers to individuals changing sex information on birth certificates. These include financial barriers associated with Births, Deaths and Marriages fees, and the costs of obtaining medical evidence or legal representation.

“The Family Court process can also be time consuming and present dignity barriers for some applicants. Many individuals find the court process adversarial and intimidating and the medical evidence requirement invasive.

“I intend to initiate work to mitigate some of these barriers in the short-term, this may involve engaging with stakeholders to test mitigation proposals and how the process can be improved.

“I have asked my officials to look at whether:

• any Births, Deaths and Marriages fees associated with applications to update sex on birth certificates and with associated name changes can be removed;
• successful applications can lead to gender records on passports and citizenship certificates being automatically updated to make it easier for applicants; and
• requirements of the current process can be made clearer, such as what is required when providing medical evidence.

“This work will provide an opportunity to engage more broadly with stakeholders to test these proposals and identify further ways that the process can be improved.”

ENDS

Contact: Richard Ninness 021 892 536

Notes for Editors - Background on current process

The current process for amending registered sex takes place through the Family Court. On average around 20 to 25 people a year use this process.

Cost - There are no Family Court fees but there are direct administrative fees for changing a birth record ($55), providing a new copy of a birth certificate ($33) and for changing one’s name ($170). Together, the total direct costs can be as high as $258.

There are also further costs, determined on a case by case basis, associated with obtaining the medical evidence currently required under the BDMRR Act. These costs vary between medical practices. Additionally, while legal representation is not required, it can help with an application and many people choose to incur further costs for legal services when going through the Family Court process.

Time and inconvenience - The Family Court process can take over a year to complete. In addition, once an application to change a birth certificate is successful, separate applications (and fees) are still required to change an individual’s name and gender as shown on passports, driver licences and citizenship certificates.

Dignity barriers - For some applications a hearing or judicial conference is required. Individuals have reported that this court process can be adversarial and intimidating. Applicants have also reported that they found the medical evidence requirement invasive, especially as there is a lack of clarity regarding specifically what evidence is required.

History of the Bill and the self-identification clauses

• The Bill was introduced in August 2017 by the previous Government.
• It didn’t initially include the self-identification clauses, instead a range of small changes that updated the current Act to allow improvements to Births, Deaths and Marriage Services.
• The self-identification issue arose due to Select Committee consideration of a petition in support of a self-identification system (2014/0086 of Alison Hamblett).
• The self-identification clauses were then added to the Bill at Select Committee stage, after public submission had closed.
• Bill reported back to house with self-identification clauses - 10 August 2018