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Gender Identification in the Legal System

By Dharsh Nanayakkara - 17 Sep 2021

As society becomes more inclusive and recognises our transgender, non-binary, takatāpui and inter-sex couples, our laws must evolve to do the same.

An individual's legal identity is first reflected in their birth certificate. A passport and driver's licence may follow.

The Births, Deaths, Marriages and Relationships Registration Act 1995 enables eligible adults to apply to the Family Court for a Declaration that their registered sex on a birth certificate be changed to the gender the applicant identifies with. The applicant must show in their affidavit (sworn or affirmed statement) that they are living with a different gender identity than the sex nominated on their birth certificate, and they have had medical treatment (not necessarily surgery) or are undergoing medical treatment to change their gender.

The medical evidence could include confirmation that the individual has assumed or, has always had, the gender identity of the person of the nominated sex. This process is intrusive to the applicant's privacy and requires precious time from the Family Court and the individual applying.

In contrast to this process for changing a birth certificate an individual may change their nominated sex on a passport and driver's licence through self-identification with the gender they are living with. A change in the birth certificate is not a prerequisite to changing the nominated sex in a driver's licence or passport.

Fortunately the Births, Deaths, Marriages and Relationships Registration Bill (Bill) currently before Parliament will address this inconsistency.

The Bill passed its second reading in August 2021 with support from all political parties. Under the Bill people would not need to go through the Family Court nor show evidence of medical treatment to change their nominated sex on their birth certificate. They will be able to self identify with their nominated sex or gender and apply directly to the Registry of Births Deaths and Marriages to register this change.

Other jurisdictions including Argentina, Canada, the Netherlands and Iceland already allow individuals to change their gender on legal documents including birth certificates through self-identification and it is timely that Aotearoa New Zealand follows suit.

If you or someone you know have any queries arising from this blog please contact Dharsh Nanayakkara or anyone in our family law team. We continue to provide full family law services throughout all lockdown levels and are just an email or phone call away


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