Human Rights Commission

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The Department of Internal Affairs has collated information for transgender applicants together on one page on their website. This covers changing sex details on a birth certificate, passport, citizenship or evidentiary certificate.

Progress has been made in three significant areas:

• a Family Court decision – that full gender reassignment surgeries are not always required before someone is able to obtain a Family Court declaration changing their sex details and
• a change to the law – so that from 25 January 2009 New Zealanders born overseas have been able to apply to the Family Court for a declaration changing their sex details and
• an updated Passports policy – so that someone who has a Family Court declaration changing their sex details will be able to apply to have those details on their passport too.

New Zealand is not alone in debating what steps trans people should be required to take before being able to change sex details on birth certificates and other government-issued documents. In March 2009 the Australian Human Rights Commission released its final report on legal recognition of sex details. The paper and its 15 recommendations can be downloaded here: http://www.humanrights.gov.au/genderdiversity/sex_files2009.html

June 2008 Family Court Decision

A June 2008 Family Court decision provides some guidance as to how section 28 of the Births, Deaths and Marriages Registration Act 1995 should be interpreted and applied in future. In the Re Michael case a trans man was able to obtain a declaration that he is male based on expert medical evidence verifying the permanent impact of his hormone treatment and chest surgery.

Judge Fitzgerald made explicit reference to the Transgender Inquiry’s final report including its assessment that legal recognition of someone’s gender should not be determined by whether they are pre or post-operative. The Judge agreed that such an approach “would be in keeping with the observations made by courts overseas … and the knowledge and understanding the medical profession have of transgender issues”. He went on to say “the law needs to keep pace with medical research and be applied in a manner that achieves justice for those concerned”. He concluded that:

[113] . . . . It is clear that there can be no standard threshold test because each case must be dealt with on its own merits by reference to the evidence of the particular applicant, and of the medical experts familiar with that person’s situation. How much surgery will be required in any given case depends on the circumstances of the particular applicant. The legislative history suggests that Parliament did not intend that a transsexual should necessarily be required to undergo the full range of surgical procedures that may be available before being afforded legal recognition of their chosen gender. Whilst there needs to be some degree of permanent physical change, that does not mean that full gender reassignment surgery will be required in all cases – and it has not been in this case.

Applications from people born overseas

There was a very quick response from the Government to the Inquiry’s recommendation that the Family Court should be able to make a declaration as to sex for overseas-born NZ citizens. On 8 April 2008 a Supplementary Order Paper was released to the Births, Deaths, Marriages and Relationships Registration Amendment Bill. This Bill passed its Third Reading on Tuesday 22 July, received the Royal assent on 24th July and came into effect on 25 January 2009. From that date, the Family Court has been able to make a declaration as to sex for overseas born New Zealand citizens or permanent residents. This is likely to be particularly useful for trans born people born in countries where sex details cannot be changed on a birth certificate including many Pacific countries and parts of the United States. This new provision will allow NZ citizens and permanent residents from those countries to apply for a declaration as to sex that can be used in New Zealand.

This amendment does not change the legal threshold before someone is able to change their sex details in New Zealand, which was the major recommendation from the Inquiry’s Citizenship chapter.

Applying to change sex details on a Passport

As explained above, the recent Re Michael case clarifies the criteria for someone to obtain a Family Court declaration changing their sex details. This does not always require someone to have had full gender reassignment surgeries. The Department of Internal Affairs has confirmed that someone who has received such a declaration will be able to apply to have those sex details on their passport. This updates the Passports Office’s previous policy which required full gender reassignment surgery before a trans woman could obtain a female passport or a trans man could obtain a male passport.

Trans people still have the option of applying for a passport with their sex details omitted (shown in the passport as an X). Further details can be obtained from passports@dia.govt.nz or by calling 0800-22-50-50.