1 March 2018
Submission on the Births, Deaths, Marriages, and Relationships Registration Bill

To the Governance and Administration Select Committee,

I am making this submission to the above committee as an individual. My submission is in response to the opening up of the Births, Deaths, Marriages, and Relationships Registration Act (BDMRRA) for amendments through a Bill before the House.

My submission seeks to ensure that the BDMRRA is made consistent with Section 21(1a, 1m) of the Human Rights Act (HRA) 1993, which lists sex as well as sexual orientation (heterosexual, homosexual, lesbian or bisexual orientation) as prohibited grounds for discrimination. My submission seeks to ensure that the BDMRRA is also made consistent with Section 19 of the New Zealand Bill of Rights Act and with the United Nations Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), particularly Article 1, which reads:

For the purposes of the present Convention, the term “discrimination against women” shall mean any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field.

To ensure that the BDMRRA does not breach Section 21(1a) of the Human Rights Act, section 19 of the Bill of Rights Act and CEDAW, I request that Section 28 of the BDMRRA be amended to include a necessary preamble: a definition of sex and a definition of gender with which the rest of the Act be made consistent. I suggest that these definitions are made consistent with the HRA and CEDAW: namely, that sex be defined as biological: persons can be either male or female according to standard definitions (chromosomes, gonads, genitals and secondary sex characteristics). I support the maintenance of an “indeterminate” provision for intersex persons under section 28 of the current Act.

Any definition of sex proposed to underpin the BDMRRA that challenges commonplace understandings of “sex” as biological, as well as definitions drawn on to prevent sex discrimination in the HRA and CEDAW, must not be legislated for without a full public consultation. This consultation should include every single service that will be affected by the institutionalisation of definitions of sex and gender that are not commonplace. Consultation must be carried out with rape crisis shelters, women’s refuges, sports teams, Corrections and within women’s prisons, any public facilities that include bathrooms and changing rooms, women in women’s representative groups and positions, all-girls schools, and other groups. I also propose that without the addition of a preamble clearly defining sex and gender, no amendments can be made to the BDMRRA. The BDMRRA is already at odds with Section 21(1a) of the HRA and CEDAW, and any changes made, if not underpinned by clear definitions, will remain weak and problematic at best and will become circular, illogical and increase harm to women at worst.

I request that a preamble be added to the BDMRRA clearly defining sex as biological, and gender as a system of discrimination, norms and stereotypes based on sex, to be consistent with the HRA and CEDAW and in light of the following. I also request that any alternative proposed definitions be put forward for public consultation in light of the following.

1. Sex, gender and “nominated sex”

The language of “nominated sex” in the current BDMRRA lacks transparency. It conceals the very different relationships to sex and gender held by males, females, males or females who identify as transgender, and intersex people. Many of those who seek to “nominate” a sex are males or females who identify with the gender presentation stereotypically associated with the opposite sex. These people may often seek medication and surgeries in order to feel that their bodies align with the gender presentation (clothing, mannerisms) that they favour. It is problematic to conflate “sex”, even using the language of “nominated sex” with what is in fact “gender presentation”, and based on sex role stereotypes. Article 5 of CEDAW also specifically requires that state parties operate “with a view to achieving the elimination of… stereotyped roles for men and women.” Ideas of “sex nomination” entrench stereotyping, thus putting the current BDMRRA directly at odds with CEDAW.

If a preamble is added to the BDMRRA, clearly defining sex as biological, this concept of “nominated sex” would become illogical. Biological sex is immutable, and cannot be “nominated”; when defined as such, it becomes clear that what is meant by “nominated sex” is in actual fact nothing to do with sex, but “gender presentation”. The idea that one can formalise a nominated “gender presentation” as a nominated “sex” dangerously conflates sex and stereotype.

Gender is inextricable from biological sex in the sense that gender is a system that discriminates based on biological sex. For instance, the “gender pay gap” is one economic expression of routine and systematic discrimination that disadvantages women on the basis of biological sex. The idea that sex is something immaterial that can be “nominated” undermines all efforts to close a gender pay gap based on sex as a biological and material reality. The fact that the notion of “nominated sex” undermines women’s efforts to end sex-based economic discrimination makes the current BDMRRA in breach of Article 13 of CEDAW.

2. Intersex

Intersex people are born not discernably one sex or the other – for instance, they may be born with XY chromosomes, but female genitalia. According to the Intersex Trust Aotearoa New Zealand, 1 in 2000 people is a conservative estimate of the number of people who are intersex, meaning that they have “genetic and physical variations placing them in between male and female”.

Intersex people are often “assigned a sex at birth” and doctors often perform “normalising” surgeries on intersex people without medical reasons. This is a problem, and also a reason why many in the intersex community worldwide actively resist having their condition trivialised to an issue of identity, preference or taste. Definitions of sex, gender and intersex must avoid any conflation of intersex with transgenderism, intersex with gender “identity”, or intersex with personal taste or preference. The definition of intersex in the BDMRRA must relate to the definition of biological sex, and to the specific priority needs and concerns of the intersex community.

3. Medicalisation of gender

While many intersex people, and women, continue to challenge and question gender norms (including through CEDAW) and their medicalisation, ill-defined ideas of “sex nomination” further entrench these norms. The current BDMRRA and its language of “nominated sex” tacitly condones a highly medicalised paradigm based on steretyping, and does this to the detriment of women, girls, children and intersex people.

Currently, the highly medicalised notion of “sex nomination” is leading many parents in New Zealand to encourage pre-pubescent children onto puberty blocking drugs, and adolescent youth onto sex hormones (oestrogen and testosterone). The effects of these are damaging and irreversible, and taken in two courses in succession, puberty blockers and sex hormones lead to sterilisation. Between 2009 and 2016 the number of people referred to endocrine services in Wellington alone because of “nominating” a “sex” contrary to their biological sex increased twelvefold, from three to forty-one referrals. The relationship between these increasingly common endocrine referrals, widespread sterilisation, the notion of “nominated sex”, and eugenics cannot be ignored. Activities like the distribution of mutilating breast binders in schools by groups like RainbowYouth, and the promotion of radical mastectomies among dysphoric girls and women, are also associated with “sex nomination”. Appropriative promotion of the indigenous concept of takatāpui as associated with medicalised concepts like “sex nomination” also indicates that Māori and Pacific youth are particularly at risk.

4. Lesbian women at risk

The concept of “nominated sex” places lesbian women at risk, and this puts the BDMRRA at odds with Section 21(1m) of the Human Rights Act. Increasingly, lesbian women in New Zealand are bullied because they are same-sex attracted, and do not therefore seek sexual relationships with heterosexual, biological males who identify as “women” and therefore “lesbians”. These males often bemoan the fact that they may be socially accepted as “lesbian” except for the fact that lesbian women will not have intercourse with them (this trend is known as the “cotton ceiling” and lesbian women in New Zealand certainly suffer because of it). The sexual and psychological coercion and manipulation involved is a torment for many lesbian women, and this will continue to escalate until moves are made to clearly define sex and gender in legislation such as the BDMRRA. Until this happens the BDMRRA will remain at odds with Section 21(1m) of the Human Rights Act.

5. Making “woman” meaningless

One of the painful ironies of the sexual and psychological coercion and bullying mentioned above is that it consistently takes place at the hands of those who cannot muster definitions of the words “woman”, “female” or “sex”. This is another implication of “sex nomination” and the current lack of clear definitions of “sex” and “gender” in the BDMRRA. Women are hindered from being able to discuss, and certainly to end, social problems such as the aforementioned “gender pay gap”, when we have no agreed upon definition of “women” to use in surveying women’s pay against men’s. Including the paypackets of men whose “nominated sex” is an undefineable version of “woman”, derived from stereotyping, in pay gap assessments will distort the reality of sex-based discrimination including invisibilising women’s sex-based economic disadvantage, and this is a breach of CEDAW (Article 13). The same will be true for discussions of violence against women. The concept of “sex nomination” will see male violence increasingly reported as having been committed by “women” – this trend is already observable. Many conversations that feminists are working hard to raise around sex-based oppression in New Zealand will be greatly facilitated should the BDMRRA include clear definitions of sex and gender based on biology.

6. Women-only spaces, representative positions and sports

Should the BDMRRA include clear definitions of sex and gender based on biology, this will also greatly aid the protection of all important female-only spaces. Women’s safety and sovereignty in women’s refuges, bathrooms, changing rooms, sports teams, representative positions, quotas, and all-girls schools are undermined by the concept of “sex nomination”. “Sex nomination” allows males to hold women’s representative positions. “Sex nomination” also allows men such as weightlifter Gavin Hubbard to undermine the accomplishments of female athletes, and push back progress women have made in competitive sports. It allows young men like Stefani Muollo-Gray to change entire Girls’ College and bathroom policies without any affected women or girls being consulted. Most alarmingly, the concept of “sex nomination” has serious potential to enable male sex offenders to gain automatic access to women’s prisons upon sentencing. Given that indigenous women – biological females – constitute the fastest growing prison population in New Zealand, Māori and Pacific women are especially at risk wherever “sex” and “gender” are ill-defined in law. All of this puts the BDMRRA at odds with the HRA, Bill of Rights Act – specifically sections protecting the rights of females to freedom from sex discrimination – and CEDAW.

Sex and gender must be defined in the BDMRRA, and “sex nomination” must be questioned, in light of the right of biological females to safe, sex-segregated spaces. Any changes made to the BDMRRA that facilitate the process or further embed the concept of “sex nomination” in law would be irreconcilable with women’s rights to safe sex-segregated spaces. The conclusion of any realistic assessment of the BDMRRA in relation to women’s rights should therefore always find moves to further embed the concept of “sex nomination” unconscionable.

In conclusion, the BDMRRA is currently illogical – because it is without a clear definition of “sex” and “gender”. It is unjust, because the concept of “sex nomination” invisibilises females, sex-based discrimination, and facilitates the rollback of women’s rights and safety. Because of this, the BDMRRA is currently at odds with Section 21(1a and m) of the HRA, Section 19 of the New Zealand Bill of Rights Act, and CEDAW. The language of “sex nomination” lacks transparency, and glosses over the very different concerns of males, females, and intersex people with regard to sex and gender. The concept of “sex nomination” in the BDMRRA embeds highly medicalised notions of gender, relying on stereotyping, in legilsation. The notion of “sex nomination” is already leading to child abuse through medical experimentation and sterilisation of children, and the normalisation of harmful practices like breast binding. “Sex nomination” is also exacerbating and emboldening homophobia and leading to the bullying of lesbian women. This is because the concept of “sex nomination” divorces the concept of “woman” from biological sex, therefore undermining the existence and validity of same-sex attraction – as well as women’s rights to safe, sex-segregated spaces like female only bathrooms, changing rooms, refuges and schools. Māori and Pacific women are placed especially at risk through the concept of “sex nomination”. Women in prisons will be at especially high risk through changes in the BDMRR Bill that will more readily allowing men, especially male sex offenders, to share female-only space with them.

The BDMRRA requires a preamble with clear and consistent definitions of sex and gender. The current ill-defined language of “sex nomination” is illogical, sexist, unjust, immeasurably dangerous for women and children, and in breach of the HRA and CEDAW. A preamble including a definition of sex should be added to underpin the BDMRRA. This definition of sex should be based on biological sex, and gender should be defined as a system of sex-based discrimination; any alternative proposals should be put forward for full public consultation. In light of the six serious concerns listed above, no changes should be made to the BDMRRA before clear definitions of “sex” and “gender” are settled on and included in the Act making it consistent with the HRA and CEDAW.

I would be happy to appear before the committee to make an oral submission in support of my written submission.

Sincerely

Renee Gerlich

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