The Trans Pride Parade in Istanbul. Photo: BULENT KILIC/AFP/Getty Images

Transgender self-identification: why it’s a human right

In the debate around the right to self-identify, the dignity of the individual should be a cornerstone, writes NZ Privacy Commissioner John Edwards

Should transgender people have the right to change official documents to record their sense of identity? This question is attaining increasing prominence, following the recommendation by a parliamentary committee that a statutory declaration will suffice should someone wish to change their recorded sex on their birth certificate.

The debate, which is not confined to New Zealand, has seen some of the discussion get ugly, at worst offering a chilling echo of responses to previous generations’ efforts to rectify historic wrongs. For some critics, the battle for trans people’s right to self-identify is the diabolical offshoot of what is seen as an ill cultural wind: identity politics.

What is “identity politics”? The term has come to be a slur, a shorthand encapsulating what is seen as the natural conclusion of another lazy and imprecise term, the much maligned ‘political correctness”. Identity politics is caricatured as a symptom of the decline of an increasingly fractured left, obsessed with smaller and smaller subgroupings of society, defined by some characteristic of race, gender, sexuality, disability or similar.

But that is only one side of what has become to be known as identity politics. Francis Fukuyama, in his 2018 book Identity – Contemporary Identity Politics and the Struggle for Recognition finds in the epithet also an explanation for the wave of rightwing Nationalism sweeping the world, from Hungary to Brazil, from the 2016 Brexit vote to the US presidential election of the same year.

The link is dignity, and the perception of the overlooked and disenfranchised, who, whether left or right, feel that their sense of identity is threatened. The subtitle to Fukuyama’s book is even more revealing: “The Demand For Dignity and the Politics of Resentment’. The aspirations of marginalised gender or ethnic groupings have something in common with the overlooked and taken for granted Rust Belt Trump voters whose communities have been impoverished by economic decline, and ravaged by pain pills. Behind each is a cry for recognition and an equality of opportunity.

Dignity is a concept central to a human rights-based approach to organising society. The inherent dignity of the individual is the fundamental concept underpinning international instruments such as the Universal Declaration of Human Rights, and a number of constitutional instruments which underpin western liberal democracies.

Understanding the concept of dignity is not just an academic or philosophical pursuit for those of us practising in one corner or other of the human rights field. Dignity is a core concept of the Privacy Act. One of the losses that an individual can claim as evidence that an action constitutes an “interference with privacy” is “significant loss of dignity”.

An attack on dignity is the diminution of an elemental human value, capable of being assessed objectively by any reasonable observer. It may present in a variety of forms, but will inevitably represent a diminution or denial of the autonomy of the individual, of their essential humanity.

The recognition of trans rights, which some might see as the “front-line” of identity politics certainly engages identity, politics and dignity. There are signs that resentment, ignorance and fear might rise to eclipse the fundamental decency on which we tell ourselves we base our society, or that we at least aspire to.

The New Zealand Human Rights Commission was one of the first human rights institutions in the world to inquire into trans people’s experience with health care access, everyday interactions and community participation culminating in a 112 page report entitled To Be Who I Am in 2008.

The first sentence in the foreword of that report is:

“Trans people strive to live lives of dignity in communities throughout New Zealand.”

There’s that word again. And another familiar word, also within the opening lines of the report:

“Trans people came to the inquiry seeking no special treatment but simply the recognition of the rights that other New Zealanders take for granted.”

The report made a number of recommendations, including:

Simplification of the requirements for change of sex on a birth certificate, a passport and other official documents to better align them with the Human Rights Act

The Births Deaths Marriages and Relationships Registration Act 1995 made provision for trans people to change the sex recorded on their birth certificate. It was progressive at the time, but required a considerable administrative burden to achieve. An applicant has to obtain a declaration from the Family Court, and present expert medical evidence showing that they have undertaken medical treatment “to enable persons of the genetic and physical conformation of the applicant at birth to acquire a physical conformation that accords with the gender identity of a person of the nominated sex”.

A Births Deaths Marriages and Relationships Registration Bill to update the Act was introduced in August 2017. The introduction version maintained the 1995 procedure for effecting change of sex on birth certificates.

After hearing submissions the Government Administration Committee reported back to the House text which dropped the 1995 procedure in favour of a much simpler “self identification by statutory declaration” procedure. This measure would bring New Zealand into line with international human rights standards, noted the Human Rights Commission.

The select committee’s change in its report back meant there was no opportunity for the public to submit on the proposal, and this has angered some commentators who have made their views known in letters to the editor, opinion pieces, and even mail drops and poster campaigns.

A small but vocal lobby group has set itself the task of opposing the reform, demanding further consultation and analysis of the potential effects of self identification on data gathering and discrimination against women.

A New Zealand Herald columnist has summarised what seems to be the core objection, that the measure will allow men to intrude into their spaces:

Under the proposed new law, a man can call himself a woman without ever medically transitioning (most never do) and insert himself in female-only spaces such as changing rooms, women’s refuges, and prisons. Women would have absolutely no legal recourse to challenge such a move.

I don’t know about you, but I wouldn’t want to be locked up alone in a cell all night with a hairy, muscly, sex-starved inmate of either gender – but particularly one with his full kit and caboodle intact. Neither would I want my six-year-old niece to see a grown male stranger naked in the changing rooms at her local swimming centre. Why shouldn’t she be able to have a male-free space?

Setting aside the crude caricature, and the assumption of equal access to medical services to assist transition, how real are these fears?

Are men really going to complete and file a statutory declaration to change their declared gender on official documents just so they can sit in a women’s changing room with their genitals on display? Really? I’m informed there are much more straightforward ways to be a perv.

The extension of the franchise to women in 1893, the decriminalisation of homosexuality in 1986, allowing first civil unions, and then full marriage rights to gay people were all measures accompanied by predictions of societal moral dissipation and turpitude. Those fears have not been realised.

That is not to say the sentiment described above is not real, and deserving of discussion. Generations of feminists have advocated for women’s rights including the right to have their own spaces. But is that really at risk from a proposal that simply allows those whose assigned gender is at odds with their own sense of self a simple mechanism to align the two? Trans women are women.

In discussing public policy, an important concept is “the counter-factual”. There is nothing in law which currently prevents the predicted harm occurring. But as far as I am aware trans women in the process of transition (who meet the criteria for charging their birth certificate gender) are not invading changing rooms, women’s refuges and the like with their “full kit and caboodle” intact.

And who, in these spaces, takes on the role of genital (or even birth certificate) inspection, as part of the entry criteria to these spaces?

There might be issues that the law reform presents, and which we have yet to identify or confront. We might need to rethink some of our approaches to public spaces, but in doing so it will be important to differentiate between the basic human right of individuals to self identify – rather than have the state dictate and control how and who they present to the world – and behaviours that might intrude on the rights of others.

The discussion about conduct and respectful use of such spaces, in which people of all genders and sensibilities have different expectations and vulnerabilities need not depend on use by trans people alone. In my gym I see men whose sense of modesty (presumably) precludes them from nudity in the presence of other men. I have known straight women who don’t like sharing such spaces with lesbians. These are challenges of design, etiquette, and conduct. Those are the responsibility of the owners of those spaces in discussion with their members.

Any suggestion that strict adherence to biological gender rules should govern prison placement in order to maintain inmates’ sense of safety and security has not met a vulnerable young man on his first lag, or an inmate who (like many) has experienced abuse and violence on the outside, let alone a trans woman incarcerated with men.

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And what would the genital determinists advise a trans man to do? He has known since childhood that his biology does not match his sense of identity. At puberty he actively suppresses outward signs of femininity, and presents to the world as male. As an adult he presents an identity conforming to his subjective experience. Would those opposing this law reform would have him use only the women’s facilities?

When the anti-reform lobby group’s mail drop was reported earlier this month, my trans son messaged saying, “This makes me feel afraid and invalidated.”

Trans rights are human rights. If you want to call this identity politics gone mad, go ahead, I’d prefer to call it dignity politics.


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