Government fails to provide gender recognition for trans and intersex people born overseas

Yesterday, the Department of Internal Affairs updated its website to announce that it is “deferring  further work on developing a process for people born overseas to register their gender”. 

Rainbow Path has conveyed to the Department the huge level of disappointment and frustration of our members, who are left without having useable IDs. This impacts on every aspect of our lives.

People born overseas, living here in Aotearoa, are frequently asked to show an identification document (ID) to prove our immigration status and eligibility for publicly funded services.  As people of colour, it is more likely someone will assume we are born overseas and request to see our ID. Yet most trans asylum seekers and refugees, and many migrants, do not have any photo ID with our correct name and gender marker. 

Today’s decision is a huge backward step from commitments the department and the previous Minister have made to trans refugees, asylum seekers and migrants. 

The Births, Deaths, Marriages, and Relationship Registration Bill was passed in December 2021, giving trans and intersex people a simple process to amend the gender on a NZ birth certificate. In her media release at the time, Minister Tinetti committed to find solutions for Rainbow Path members and others who do not hold a NZ birth certificate:

“I would like to acknowledge that there will be disappointment from overseas-born New Zealanders as they will not be able to access self-identification at present. This is because the changes only apply to New Zealand birth certificates at this stage. Work will be done to address this, starting with further consultation with those affected. This will only further strengthen the milestone we have achieved today,” Jan Tinetti said.

Consultation by the department in 2022

Since the Bill was passed, the department has continued to consult trans and intersex people. Partly, this was to help finalise details about the self-identification process for NZ birth certificates that would be put in regulations before the new law comes into effect on 15 June 2023.

In addition, because the Bill does not cover trans and intersex people born overseas, the department started to consult trans asylum seekers, refugees and migrants about the IDs we currently have and aren’t able to update, as the initial step towards exploring potential solutions.This two-stage consultation process was clearly spelt out in the department’s engagement strategy, on its website:

“13. Work to resolve the issues for people born overseas will progress on a different timeline. This timeline will be published in due course. A second round of engagement on policy options is intended in 2023, providing another opportunity for people to share their views. While solutions to these issues will not come into force alongside the self-identification process, Government has committed to pursuing a solution.”

Based on these commitments, Rainbow Path members put in months of voluntary work encouraging trans and intersex people born overseas to share their experiences living in Aotearoa with no useable ID. Rainbow Path collated those stories into its submission to the department in July 2022. 

Reneging on those commitments

As the screenshot below shoes, at lunchtime yesterday, Wednesday 5 April, the department’s online FAQ about this work (the BDM review) still said “We are committed to pursuing a solution for people born overseas”.  

Half an hour later, that sentence had been removed from the FAQ.

Soon after, the following update appeared as a new tab titled “Recognising gender for people born overseas” on the “Recognisng gender on birth certificates” page of the department’s website. A screenshot of the department’s full update is also copied at the bottom of this blog post.

A summary of the department’s 5 April update 

.After a short introduction, the department makes four main points:

  1. Feedback from consultation showed the issues are complex and there is no clear solution. 
  2. Two small improvements are planned over the next 12 months, enabling trans and intersex people to amend the gender on their Citizenship Certificate and their Refugee Travel Document. 
  3. Any further work on potential solutions is deferred until the department develops digital identity tools, so the department can “assess how digital identity tools could contribute to solutions”.
  4. There are no timeframes for the development of digital identity tools and any further updates will be provided on this department webpage.  

Rainbow Path’s response to that update

Rainbow Path has been advocating for a solution for over five years. Over that time we have written many submissions, documented the experiences of our members, met with politicians, and even helped the Department of Internal Affairs consult with our communities. 

The next promised step was to seek feedback on potential solutions. That was the agreed process to talk through the pros and cons of different options and clarify potential solutions. The department has unilaterally decided to give up on that process. 

The two operational improvements that the department has signalled will take place over the next 12 months will have very minimal additional benefit for Rainbow asylum seekers and refugees or migrants. 

  • The department had already committed previously to ensuring that citizens would be able to update their gender marker on a Citizenship Certificate, rather than just being issued an Evidentiary Certificate with the corrected details. (See for example page 12 of the government’s response to the Working Group for Reducing Barriers to Changing Registered Sex.)   
  • Asylum seekers often have to wait years to be accepted as a refugee and aren’t eligible for a Refugee Travel Document (RTD) until then. These proposals will make no difference to them.
  • Once we are accepted as a refugee, it is already often possible for us to amend our gender on a Refugee Travel Document (RTD). Formalising this policy does not fix the problem that we cannot change our name until we are permanent residents, meaning all our documents (including our RTD) are of little use because they have our wrong name.  Finally, the RTD is seldom recognised as proof of one’s identity, even by government agencies. 

Rainbow Path’s faith in the potential of digital identity tools is minimal at this point, given the documents currently required to change details online. For example, it was very hard for our members to even get a Vaccine Pass during the COVID-19 pandemic. We would have valued the opportunity to be consulted by the department about potential digital identity tools, to provide a reality check of how they may or may not work for trans and intersex asylum seekers, refugees, and migrants.

Now we are left with no meaningful progress, an indefinite waiting time while the department explores whether digital identity tools might help, and no formal consultation processes with our communities.

Rainbow Path has told officials at the Department of Internal Affairs that it is vital that any ongoing work in the digital identity space involves meaningful consultation with trans asylum seekers, refugees and migrants born overseas.

Rainbow Path is asking for your support as we keep pushing for essential legal protections for trans and intersex refugees, asylum seekers and migrants including:

  • an Identity Document that recognises who we are and
  • making sure trans and intersex people are explicitly included in the Human Rights Act and in hate speech and hate crime laws.

Please keep fighting alongside us until those rights exist for all trans and intersex people.

We should never settle for legal protections that only apply to people born here

Sceenshot if the department's 5 April update. The full text is available online.

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