Implications of changes to Births Deaths, Marriages and Relationships Registration Act for women's prison inmates

Changes to the Births, Act are currently being considered by a select committee. Several amendments are specifically designed to ease the process of “sex nomination” based on self-identification. Combined with changes to Corrections guidelines, effective since March this year, this Bill will have significant implications for women's prisons inmates in New Zealand if it is passed.

At present, there are approximately 25 trans-identifying prisoners in New Zealand prisons, according to reports obtained under the Official Information Act. This number has grown since 2016, when 17 male to female (MTF) inmates were housed in women’s prisons (so far, no transfer of a trans-identifying female inmate to a male prison has been recorded).

Corrections Chief Custodial Officer Neil Beales said in an interview with the Herald in March 2017 that "We note that not all trans prisoners choose to apply to have their placement changed and some trans prisoners are ineligible to apply due to the nature of their offending”.

Trans-identifying prisoners are ineligible for transfer if they are serving for a serious sexual offence, under remand for such, or have previously served a sentence of imprisonment for a serious sexual offence committed against a member of the sex to which they identify.

However, new Corrections guidelines came into place in March 2018. An amendment to the Corrections Regulations 2005, made in February 2014, means that where a prisoners’ birth certificate has been amended to record a different sex from that recorded at birth, the prisoner is entitled to be placed in accordance with the revised certificate.

These guidelines will be affected by legislation currently under consideration that seeks to make it easier for anyone (including prisoners) to change the sex marker on their birth certificate. The Governance and Administration Committee is currently in consultation on proposed changes to the Births, Deaths, Marriages, and Relationships Registration Act 1995 to allow for the sex-marker on Birth Certificates to be changed through a one-step administrative process based on self-declaration of gender identity.

The proposal for self-declaration of gender identity removes barriers and speeds up the process of obtaining a revised birth certificate. At the moment, trans-identifying people must show they have “taken decisive steps to live fully and permanently in the gender identity of the nominated sex” and based on “expert medical evidence” can apply for the decision to be made through the Family Court which can take 3 to 18 months.

The proposed changes will remove these requirements and allow people to self-declare their own gender through the Department of Internal Affairs, in the same way that the sex-marker on NZ Passports and Drivers Licences can be changed. Once this process is complete, the person is legally recognised as the sex displayed on their birth certificate.

This will apply to anyone currently in the New Zealand prison system. Birth certificates are the determining documentation in the placement of all prisoners and will mean a prisoner will be automatically moved to a prison that caters for the gender their certificate indicates.

Should amendments to section 28 of the Births, Deaths, Marriages, and Relationships Registration Act 1995 be successful, any prisoner who has committed a serious sexual offence would be automatically rehoused if they were to apply to the Department of Corrections based on self-identification. Malta has recently adopted similar legislation to amend birth certificates based on gender self-declaration and processes applications within 30 days.

This legislation would see sex offender Morgana Platt (formally Malcolm Pratt), who was jailed this month, allocated to women’s prison because of their identification; provided they had changed their birth certificates through a one-step process.

The individual (who wishes to remain nameless) who made the initial OIA request to gain some clarity on the placement and replacement of transgender prisoners said that they were “shocked to read in the response, a couple of paragraphs of unprompted explanation about how the prison system would respond if there was an allegation of sexual assault.”

The requester said “this voluntary aside came after I asked if prisoners would be transferred even if they had committed a serious sexual offence towards a member of their nominated sex. Their answer was yes, of course, but I didn’t expect a reassurance on how they would do their best to help a victim when the inevitable occurred.”

“They mentioned many times in the response that an amended birth certificate could only be obtained via the Family Court,” the requester states. “It was clear to me that they aren’t aware of the proposed amendments being considered right now that would make the requirements to revise a birth certificate much simpler, and based on self-declaration.”

For comparison: recent research conducted using official data on the prison population in England and Wales concluded that an estimated 41% of trans women in prison in England and Wales are sex offenders. The average percentage of male sex offenders, in comparison, is 17%. A similar study done on the Californian prison population showed that 20.5% of trans women inmates were sex-offenders, compared to 14.6% among male inmates. Based on current data, 822 (or 7.7%) of the current prison population of around 10,700 are in women’s prison.

Many submissions of support have been received regarding the amendments to the Births, Deaths, Marriages, and Relationships Registration Act 1995. However, some submissions raised concerns about the negative impacts that would result on vulnerable populations such as incarcerated women, should legal sex changes be over accessible.

One critical submission said “Self-identification opens up legislation to abuses from those with pernicious intentions which specifically would endanger women (females) in places of vulnerability such as prisons, hospitals, psych wards, schools, dormitories, abuse shelters, refuges, rest rooms, and other spaces currently segregated on the basis of sex.”

Another submission states “A process that relies entirely on self-declaration, where identification is dependent on the veracity of the subject, and the subject only, could be exploited by a prisoner to demonstrate diminished risk and for other specific reasons. It would be reckless to pretend that this would or could never happen.”

The Births, Deaths, Marriages, and Relationships Registration Bill is due for its second reading at a time yet to be determined, before being taken to the House.

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