The “physical conformity” requirement to change legal sex in NZ

9 August, 2008 (20:55) | Political

The “physical conformity” requirement to change legal sex in New Zealand – A reply to opposition to the Human Rights Commission’s recommendation from within the trans community.

I’ve heard some people in the community are against the Human Rights Commission’s recommendation to:

Amend section 28(3)(c)(i)(B) and (C) of the Births, Deaths, and Marriages Registration Act 1995 by substituting the ‘physical conformity’ threshold with the requirement that someone ‘has taken decisive steps to live fully and permanently in the gender identity of the nominated sex’

As far as I am aware, the law as it currently stands requires MTF transsexuals to have undergone genital reconstruction surgery (GRS) to be able to legally change their sex to female on their birth certificate and passport. I’m not entirely clear on how this law has been applied to FTM transsexuals as there are additional considerations that FTMs have to make about their surgery including a larger cost and less functional surgical outcomes, and I think the law is currently being tested.

The FTM situation aside, there are some in the trans community who believe that MTF transsexuals who have not yet (pre-op) or do not intend to (non-op) have GRS should not be given the right to legally change their sex to female (unless or until they have GRS). The reasoning for this argument (as far as I can tell) is the belief that relaxing this restriction will reduce or at least undermine the rights of transsexuals who have already had GRS (post-op).

Much of the argument against this position has focused on the belief that undergoing GRS is an arbitrary way to identify whether people should be entitled to change their legal sex or not, because some people can’t have GRS because of issues like finance, heath, disability; and some choose not to because of the risks and possibility of suboptimal outcomes that are invariably inherent in undergoing a major surgery. Also, the latest WPATH statement on the medical necessities of transgender treatment states that genital reconstruction should not be required for legal sex recognition1. I agree with this side of the argument, however in what I am writing here I will focus on the arguments and assumptions made by those advocating keeping the physical conformity threshold and argue why I think they are erroneous.

Those advocating keeping the physical conformity threshold seem to be very worried about somebody starting out on transition, changing their legal gender, and then deciding that the gender change is not for them and going back to their original gender. These people will have been given the “rights” to legally call oneself a member of the gender that they have detransitioned from and also have access to spaces (e.g. toilets etc.) available to only that gender. Some of those advocating keeping the physical conformity threshold seem to find it objectionable that someone who is not truly transsexual (which they define as such by the fact that they have destransitioned) has been given these rights. I would argue that this is not something that people need to be worried about – like all transsexuals I had the right to access the spaces of the “wrong” gender in my earlier years but that is not something people are worried about. Likewise people don’t seem so worried that some transmen still have the “right” to access female spaces even though they are ostensibly male.

This argument seems to extend to the belief that this detransitioned person may exploit the rights that they have been given – or at the very least have the ability to exploit such rights. I’ve only seen this argument applied to people on the MTF spectrum – detransitioned males will still have the right to access women’s spaces and could exploit this. I disagree with this. I don’t see any reason why a detransitioned MTF transgendered person would have any more reason to exploit this than a transman would (these are the two groups that may have the legal right to women’s spaces but supposedly shouldn’t be there). If they do go and do something stupid or offensive in a women’s space then they would receive the same repercussions for this that anyone else would, there are enough legal protections in NZ to ensure this. We should not restrict the rights of many genuine transgender people to safeguard against a something that has a minuscule possibility of happening (if any possibility at all).1

Finally, the argument for keeping the physical conformity threshold seems to stem from fear that giving transsexuals who haven’t undertaken the physical conformity measures the same rights as them that this will lessen or at least water down their rights. To me this is similar to the argument that some cisgendered women have used to try to prevent transsexual women from having access to their spaces. They say there are places like change rooms and airport searching where genital exposure is inevitable and thus physical conformity is required. Again, I don’t agree with this argument – all the transsexuals I know who have not undergone GRS exercise discretion when in gender-segregated changing or toileting spaces, generally avoiding these or using closed stalls. I would like to hope that we could get to a stage where people wouldn’t see others with different genitalia in gender-segregated spaces as threatening, but in the mean time it seems like this discretion is justified.

I believe it is more important that we stand by our principles of advocacy of rights of all transgendered, transsexual, and other gender-variant people regardless of their genital operative history.

 1 I acknowledge Cathy for her comments to help form these points.



Comment from Racheal McGonigal
Date: August 14, 2008, 8:52 am

Hi there,
Realise this is a sensitive issue to many and for many reasons.
Firstly we are talking about changing the Birth, Deaths and Marriages Act 1995. Most people likely have never seen it and dont know exactly what it says so here is the relevent sections.
“ “(B) Has undergone such medical treatment as is usually regarded by medical experts as desirable 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; and
 (C) Will, as a result of the medical treatment undertaken, maintain a gender identity of a person of the nominated sex;”

1/- No where in it does it state the requirement is Gender Realignment Surgery.
2/- No where in it does it differentiate between MtF or FtM.
3/- I am aware of at least 2 cases of FtM who have legally changed thier F to an M and have NOT undergone GRS.
4/- I believe there are more than 2 and because this was done through the Courts, under the Births, Deaths and Marriages Act 1995, legal precidents have been set that GRS is NOT the requirement.

Yes I am postop and I oppose the changes. I am not alone in this as there are several post op MtF who are concerned at the ramifications this could have on our own standing in society. Currently we are accepted easily as just ‘female’.
How ever we are a minority within the minority. We are not eletist and have great sympathy for those who cannot financially afford GRS and those with medical conditions preventing them. Those who just choose not to make that choice, choose for themselves knowingly.

The HRC and those seeking to change this Act are taking the easy option and we postop who are concerned feel the possible ramifications upon ourselves are not being considered. Jamie, you have largely written about things centered around shared toilet and changing facilities but havent address what we see as the far bigger concern. Employment, Social Environment, Medical for starters.

This issue is not just about toilets but how postop are currently seen and accepted in society as female.

It is our belief that rather than pushing to change the laws as the easy option, we as a community should be asking questions to the Ministry of Health and Government Ministers as to why no high cost funding has been applied to send Trans over seas for GRS during the time there was no surgeon available in NZ; Why the MoH use a tech brief showing ‘there is no benefit to transsexuals having GRS” when even the writters of that tech brief stated it was the wrong brief and there was little information to make a decision on.

We as a community should be working together to help those with financial constraints to become eligiable for this funding, seeing it is used and applied correctly, seeing that their are options to use overseas, more qualified surgeons offering choices then limited to one surgeon offering 1 technique here in NZ only. Perhaps bringing overseas surgeons to NZ to assist and train.

For those who can’t have GRS for medical reasons, then we need to be working to see they are able to get the best medical treatments they need and not just medical treatments but help in all ways.

I have one friend in this situation who, for medical reasons and age accepts she will never be able to have GRS. She is realistic and accepts that even tho she is ‘female’ she cannot get the things she wants. She also accepts that there will always be elements in society that are disadvantaged, that you can please all of the people some of the time but but never all of the people all of the time.

Post op numbers are growing. In the past, many issues have been addressed by pre op and now many post op are starting to voice their concerns and issues. Many are speaking up instead of going stealth. We are not trying to segregate but are trying to help preop as well. We are considering preop needs and seeking to address their issues. But we are also seeking to preserve ourselves and ask only that preop give more consideration to the possible effects on us should the wording in this Act be changed to make it easier.

As said at the start, the legal precidents have been set; GRS is NOT a requirement. For those who do not wish to have GRS then the legal system is in place. Yes at a cost and I will end in asking why would a person claiming to be MtF or FtM spend $$$ on a legal fight rather than spend it on GRS and become the person they really are?

Comment from Ivy Robinson
Date: August 20, 2008, 4:20 pm

Rachael, you appear to be equating genital configuration with gender as well as sex. That’s been the case for many years, but evidence shows that genital configuration doesn’t cause what gender someone is.
Whether I have SRS or not is not going to change that I’m female. I believe that I should be able to change my sex legally to female, because I have taken decisive steps to live in a female identity, and the effects of some of this is permanent. I live as a woman now, yet cannot be fully recognised as one because of my genitalia. This doesn’t make sense to me, given how very, very few people ever get to see them. I don’t interact with people using them, for example. Yet you believe that I should not be legally recognised as female? It appears to be on the grounds that you had the money to pay for the proceedure and were willing to undergo the difficult procedure. You want extra recognition for this at the cost of recognition for others? Perhaps you consider yourself to be more of a women than other trans people who haven’t undergone this. Is that from a need for validation, or do you just not want to be associated with the rest of us? I can’t see here how excluding people is going to lead to better human rights and other legislation

Comment from Racheal McGonigal
Date: September 6, 2008, 11:21 am

When you are asked to fill out a legal form does it usually and I do say usually, ask for ‘Gender’ or ‘Sex’? M or F?
I am a genetic male and always will be but I am legally female. From what you have written here about my being fortunate enough to have been in a situation to afford GRS and comments about my considering myself to be more of a woman, I feel you are more interested in attacking me snidely than actually reading and understanding what I actually wrote so lets try to make it easier for you.
1. Currently the Births, Deaths and Marriages act does NOT stipulate that anyone has to have undergone any kind of surgery.
2. I sited the relivent sections in the above where it refers to ‘medical proceedures’ and ‘medical experts’ and not to surgeries.
3. It has come to the attention of many that there have been precedents already set where GRS is not a requirement.
4. If you continue as you are and have (hopoefully not) an accident that debilitates you badly or when you get to 70+ in a retirement home, if you choose at that time to cut your hair or throw a wig in the corne,r you can and can revert to being male easily. I cant.
5. You can say now verminently that you never will but be assured you dont know what the future holds for you.
6. You have legal precedents to take your case but would you rather spend money on that or seeking GRS? Whats more important to you?
7. Many post op, not just me, are concerned of the impacts an easing of the ability to change the F or the M will have on them. Currently many live stealth, have jobs, a husband or partner. We are currently accepted reasonably easy into society. we have concerns an easing will see us less accepted.
8. Have you ever considered the possible impacts on postop or just interested in making it easier for you?
9. I am very supportive of those who follow me, preops and as you will see in the above, I believe more energy needs to be put into seeking more surgeries, easier access to the high cost funding, use of more qualified overseas surgeons, better access to all medical services and much more.
10. I have had my GRS so what benefit is there to me in my fighting for these things?

I find what to me seems to be a personal attack on someone you dont know pretty insulting on someone who is working opennly in the trans community for the betterment of all.
I suggest you forget your bias or whatever jealousy you have and go re read and consider fairly what I wrote.
I am not interested in wasteing time and money on something there seems little need to change and can disadvantage another sector of our community considerably. I’m interested in helping all.

For the first time in along time we are now seeing alot more post op standing up and being counted in a world where for along time pre op had domination because post op just wanted to live the life they finally had achieved. We all need to live, work together and help each other fairly for all.

Comment from Racheal McGonigal
Date: September 18, 2008, 7:52 am

For those interested.
On June 9th, 2008 in the Auckland Family Court there was a ruling clearly setting the precedence that GRS is NOT a requirement of the Birth, Deaths & Marriages Act in a person seeking to change the gender they were assigned at birth.
The Judge took many other factors into consideration and gave a very clear and precise ruling in his deliberations.
The HRC website has those deliberations so they can be viewed.
The Act as it stands clearly works fine with no need for it to be changed.

Comment from Ivy
Date: September 25, 2008, 5:02 pm

- I’m well capable of understanding what you wrote!
- Gender/Sex on forms is a vexacious problem, because most people who design such forms don’t appear to know what either actually mean, and frequently mess them up. I figure in my current situation, I’d probably be lying regardless of what I put on such forms! In most circumstances a sex or gender field on a form is completely irrelevant. What does my bank care, for instance? It’d be nice if society could get to the point where these questions were viewed as usually unnecessary.
- I consider the BDM act as it currently stands to be vague. We’re fortunate to have had a legal precedent set for us that SRS is not a requirement to legally change sex. However, the law itself is still not explicit and quite open to interpretation. I believe guidelines should be considered and discussed by a wide range of people, both transgendered people, and officals (like customs officials, who have reasonable requirements for official documentation on security reasons).
- I don’t quite get why someone would want to revert to living as a man if they had a debilitating accident, or grew old. Men and women exist in all age brackets, and all states of ability and disability. There’s no logical reason to genderflop just because something bad happens.
- Stating that I do not know what the future holds for me is a strange statement to make, as it is obviously true. You cannot use this to make any assertions.
- In any case, the potential of you or I or any transperson returning to living as their original sex at some stage in the future should not have any bearing on our right to change our legal sex in the future. Anyone changing back to their original sex would have to again satisfy the decisive steps requirement in the reverse direction. Also, reversion back to original sex is rare. I don’t see the very few who return to their original sex providing detriment to the rights of those who stay as their chosen sex. One guy did revert in Australia, and tried to sue health practitioners in Australia- his case was swiftly thrown out as he’d mislead practitioners in the first place. The system has safeguards to make sure people changing sex are doing so for the right reasons.
- It doesn’t matter whether there’s benefit for you in fighting for something. What about fighting for something because it’s just? Or will help those who were in a position you were in?
- I completely agree on the provision of medical services. Access and quality needs to be streamlined throughout the country.
- This situation is not a post op vs. pre op deathmatch (something best left to bad Brazilian telenovelas). Both can work together. Neither needs to dominate the other.

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