Law debate: Behind the myths
As a proposed bill looks to make it easier for people to amend the sex on their birth certificates, Cecile Meier looks at the science and statistics.
WHAT’S THE PROBLEM WITH THE CURRENT LEGISLATION?
Anyone who wants to change their gender marker has to go through a long and costly process to change the sex on their birth certificate, which involves an application to the Family Court providing proof they’ve had medical treatment to transition.
The process for changing a New Zealand driver’s licence or passport is much simpler: a statutory declaration, which involves an authorised witness or justice of the peace.
Parliament last year recommended that Internal Affairs Minister Tracey Martin’s Births, Deaths, Marriages, and Relationships Registration Bill be amended so that a person can change the sex on their birth certificate to male, female, intersex or X (unspecified) by statutory declaration, as is the case in many other countries.
Clauses allowing for selfidentification were added to the bill at select committee, after public submissions had closed. Last month, Martin announced a deferral of the bill to allow for public consultation on the selfidentification clauses.
Advocacy groups have expressed shock at the delay, saying it could impact on transgender people’s wellbeing.
A New Zealand survey in 2012 found about 40 per cent of all transgender youth had significant depressive symptoms and had harmed themselves. It also reported that trans people have a five times greater rate of suicide than the non-trans population, and were 41⁄2 times more likely to be bullied at least weekly at school.
A 2015 survey in Canada found that having personal identification documents changed to an appropriate sex designation was one of the factors associated with large reductions in suicide risk.
Without a birth certificate with the proper gender marker, trans people are at risk of being outed when opening a bank account, enrolling a child in school, applying for a student loan or a job.
A 2008 Human Rights Commission report found that having consistent documentation
could affirm a trans person’s gender identity and dignity and form an important part of transitioning.
Waikato University psychology lecturer Jaimie Veale recently surveyed more than 1000 Kiwi transgender people. She found that most didn’t have the correct gender marker on their birth certificate. She says this is because it is a lengthy and costly process, that many find strips them of their dignity.
Veale, who is transgender, hasn’t changed her birth certificate because of the ‘‘indignity of having to prove to a judge or a medical professional that we are transgender’’. ‘‘It shouldn’t be for them to decide; we should be able to decide ourselves.’’
She and many others would make the change if all that was required was a statutory declaration.
WHO IS OPPOSING THE BILL AND WHY?
A small number of self-described ‘‘gender critical feminists’’ created the Speak Up For Women group to oppose the bill. Another small group called the Lesbian Rights Alliance Aotearoa (LRAA) has said the proposed changes will endanger women, but some queer advocates have said the LRAA does not speak for them.
On the Speak Up For Women website, an open letter to Members of Parliament says selfID ‘‘has significant potential and unintended consequences for women and girls’’ and lists concerns including trans women’s access to single-sex spaces such as toilets, changing rooms, girls’ schools, women’s shelters, girl guiding, sports teams and women’s prisons. It has been signed by more than 500 people.
However, women are not currently asked to provide a birth certificate to access toilets, changing rooms or safe houses. Women’s refuges, many girls’ schools and Girl Guides already accept trans girls and women. Access to such organisations is usually dictated by their policies rather than birth certificates.
Birth certificates are not usually used to filter people who play sports. At professional levels, transgender athletes are tested for hormone levels. If asked for ID, most people would provide their passport or driver’s licence, rather than their birth
certificate.
WHAT ABOUT PRISON?
Recent changes to the Department of Corrections’ policy for the treatment of transgender and intersex prisoners mean trans women can ask to be sent to a women’s prison.
But the policy states that trans people serving a sentence for serious sexual offences against a person of their nominated sex are not eligible to be moved to a facility housing prisoners of that sex.
The policy also states that a prisoner must be placed in a prison that manages prisoners of the sex specified on their birth certificate.
The Department of Internal Affairs (DIA) has looked into countries that have self-ID laws and found no evidence of prisoners trying to ‘‘game the system’’ to access prisoners of the opposite gender.
However, Speak Up for Women points to UK statistics showing an increase in the number of male prisoners wanting to transition. Trans advocates have said that the prison system needs to ensure prison safety, no matter the prisoner’s gender.
The DIA has also said that justices of the peace and other witnesses to a statutory declaration can assess the credibility of a person and refuse them if they are not convinced the declaration is correct. Making a false statement is an offence punishable by five years’ jail and, with the new law, people changing their marker on their birth certificate would not be able to change it back.
BUT I THOUGHT BOYS HAD PENISES AND GIRLS HAD VAGINAS?
Auckland University of Technology psychology senior lecturer Pani Farvid, who is
researching and writing a book on gender and sexuality, says genitals don’t define someone’s gender, and are not always a clear indicator of someone’s biological sex.
People born with a reproductive or sexual anatomy that doesn’t seem to fit the typical definitions of female or male are generally called intersex. According to the Intersex Society of North America, ‘‘a girl may be born with a noticeably large clitoris, or lacking a vaginal opening, or a boy may be born with a notably small penis, or with a scrotum that is divided so that it has formed more like labia’’.
Farvid says the introduction of modern medicine started to erase and medically correct these natural human variations at birth, sometimes in unethical ways. ‘‘Our society has created a two-gender model, and some people argue that the model has actually influenced the two-sex model.’’
WHAT ABOUT X AND Y CHROMOSOMES?
XY is male and XX is female, right? Well, not necessarily. Farvid says some people are born with a single sex chromosome (X or Y), and others with three or more (XXX, XYY, XXY).
Some people are born with XY chromosomes and a vagina, and identify as women, for example.
Most transgender people don’t have those conditions but their existence shows that gender is not only defined by chromosomes and genitals.
WHERE DOES GENDER IDENTITY COME FROM, THEN?
Studies looking at identical twins suggest genetics play a role – one study found that, when one twin was transgender, the other twin was too in 40 per cent of cases. And even when twins are raised apart, they were found in some cases to both come out as trans.
But Farvid says gender expression has massively varied in history. Things we consider very feminine today, such as high heels, makeup, wigs and the colour pink, were all seen as masculine at different points in history.
Some iwi have long accepted less binary concepts of gender. In Ancient Greece, gender was understood completely differently: it was not about your genitals but about your social status and the position you took in sex, Farvid says.
Typically men of affluent, high social standing were the ‘‘givers’’ of sex to young men and women and were considered masculine, while the young men and women ‘‘receiving’’ sex were considered feminine.
In parts of the world such as Indonesia, Samoa and Bangladesh, it is accepted that there are more than two genders.
It’s unclear exactly where gender identity comes from, but Farvid says increasingly gender is seen as a spectrum. How you see yourself on this spectrum is influenced by a combination of biology and society.
It is clear transgender people exist and have existed for a long time. ‘‘We seem to be quite gender-obsessed as a society. We probably need to let go of these questions and focus on overall freedom, equality and human rights’’.
ARE ALL TRANS PEOPLE GAY?
Gender identity and sexual orientation are different things. Farvid says a trans man can be attracted to men or women, both or be asexual, for example.
IS BEING TRANSGENDER A MENTAL ILLNESS?
As it did with gay people, the medical community for a long time saw transgender people as mentally unwell. The psychiatrist’s bible, the DSM (the Diagnostic and Statistical Manual of Mental Disorders), previously labelled being trans as a mental disorder, under the same heading as paedophilia and bestiality.
Simon Denny is an Auckland University associate professor and a paediatrician working at the Centre for Youth Health in South Auckland. He says the treatment of transgender people started to change in the 1990s and 2000s when the trans community became more vocal and it was clear they were suffering.
In 2006, a big survey in the US showed that a large number of trans people were attempting suicide.
The DSM stopped labelling being transgender as a mental disorder six years ago, and last year the World Health Organisation removed it from classifications of disease.
According to the Ministry of Health, trans people are often over-represented in poor health outcomes, but ‘‘few of these poor outcomes are caused by a transgender identity itself, but rather by discrimination from wha¯ nau, health services and those in wider society’’.
Research has shown that trans people who are supported socially and medically in transitioning to the gender they identify with have much better mental health outcomes.
This is why scores of medical, psychiatric and social worker organisations around the world are supporting trans-affirming health care.
WHAT ABOUT CHILDREN AND TEENAGERS – I HEARD THEY WERE GIVEN HARMFUL HORMONES FROM A YOUNG AGE?
In New Zealand, children are not given hormones before the age of 16. If they have a long history of gender dysphoria (distress experienced as a result of the sex and gender they were assigned at birth), they can access puberty blockers when puberty kicks in (around 12).
Denny, who has helped transgender youth aged 5 to 25 socially or medically transition for more than 10 years, says puberty blockers are not the same as hormones.
They have been used for about 30 years and are safe, completely reversible, have little to no side-effects and no longterm effects.
They give the young person time to continue exploring their gender without irreversible medical intervention, he says.
If a 5-year-old wants to transition, Denny will tell their parents to let the child explore their gender identity – wear whatever clothes fit their gender, pick a different name if they wish, cut their hair or grow it longer, and generally be socialised in the gender they choose without any medical intervention.
HOW DO WE KNOW IT’S NOT JUST A PHASE OR A TREND?
In New Zealand, people have to be seen by a clinical psychologist before they can be referred to hormonal treatment.
Clinical psychologist Julia Sawyer, who does these assessments in the private and public sector, says research shows that adolescents transitioning from ages 16 and 17 are highly likely to complete the transition and live in their chosen gender identity. Studies of adults who have transitioned using hormones and surgery found that the vast majority don’t regret it.
Denny says the Centre for Youth Health in South Auckland has seen hundreds of young people and he is only aware of the odd one or two cases regretting their medical transition.
He says many of the youth he sees are healthy and have no mental health condition. However, some are bullied, beaten up and discriminated against, all of which can impact on their mental health.
Sawyer says there is frustration in the mental health community because most people getting assessed are mentally well but have to be in the services because of red tape.
‘‘Many young people I see have wonderful peers, are doing exceptionally well at school, are well adjusted and they have to come to mental health services and be evaluated to get a signoff. We are using resources for people that we wouldn’t consider mentally unwell.’’
WHAT IF A BOY LIKES TO WEAR DRESSES AND PLAY WITH DOLLS AND A GIRL IS A TOMBOY – DOES THAT MEAN THEY ARE TRANS?
Having gender dysphoria is not the same as rejecting gendered norms, Sawyer say. Girls who refuse to wear dresses and boys who like to play dolls don’t necessarily have gender dysphoria.
Some transgender children declare from a very young age that they feel like the opposite gender and their dysphoria persists over time.
Denny says a parent could not pressure a child into transitioning to the opposite sex – the medical process to transition would absolutely not allow this to happen.
HOW MANY PEOPLE ARE TRANSGENDER IN NEW ZEALAND?
A 2012 survey of 8500 high school students from around the country found 1.2 per cent of participants said they were transgender, and 2.5 per cent said they were not sure of their gender identity.
Waikato University’s Jaimie Veale says there is no New Zealand research looking at the number of transgender adults, but research found about 0.6 per cent of the adult population was transgender in the United States and other countries, and the number was higher for younger populations.
Veale recently completed a survey of transgender people and had 1170 responses but estimates that up to 20,000 people in New Zealand are transgender.