“Change can never be ‘complete’”: the legal right to self-identification and incongruous bodies

Abstract

At the time of writing, New Zealand's government is considering select committee recommendations to simplify the process for changing the sex recorded on a birth certificate (Governance and Administration Committee 2018). This article argues that the inconsistent requirements for binary and non-binary transgender people to amend their documentation indicates a scepticism of the legitimacy of non-binary identities. The current process for transgender people seeking to change their sex marker is onerous and often expensive (Noonan and Liddicoat 2008). Attaining an "indeterminate" marker on a birth certificate is so difficult as to be functionally impossible. Crown Law have suggested that “social factors” (how a person’s gender is perceived by others) would be considered by the courts when deciding on the veracity of their stated gender identity, indicating that being identifiable as a binary-gendered person is a contributor to achieving legal recognition of one’s gender. The proposal presumes that recording an "official" gender is natural and necessary. Legal recognition of non-binary people signals an expanded understanding of recognisable gender identities, but requires situating oneself within a bureaucratic framework. In light of the new process being proposed, I argue that if passed this Bill implicitly raises the question of why identity documents must have a sex marker on them at all.