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Validity of UK Birth Certificates

in Cases of Transsexualism  absent surgery –

New Zealand

----- Original Message -----

From: Karen Gurney

Sent: 18/04/2007 9:08 p.m.

Subject: Validity of UK Birth Certificates in Cases of Transsexualism  absent surgery –New Zealand

 

Ms Susan Elizabeth Hillda

The Department of Internal Affairs

Identity Services

Births, Deaths and Marriages

PO Box 10-526

Wellington

Dear Ms Hillda

Validity of UK Birth Certificates in Cases of Transsexualism absent surgery

I am interested to know your views on the validity under New Zealand law of a UK birth certificate issued to an expatriate from the UK now living in New Zealand where the person has altered their gender under the UK Gender Recognition Act, but has not undergone surgical sex affirmation to rehabilitate their sex phenotype to accord with their new registration certificate. 

I am particularly interested in the marriage question.   In your view, if the person has the genitals and gonads of a male (ie is of the male sex), but has a UK birth certificate saying they are female gendered, and enters into a marriage ceremony with a male, would this be a valid marriage according to NZ law? 

In Australia, the common law position was examined very carefully by Chisholm J in the Family Court.   IN Re Kevin (validity of marriage of transsexual) [2001] FamCA 1074.   He held that the words "man" and "woman" have their ordinary meaning and that a person's sex must be determined according to a number of factors.

His Honour said, at 329: "...the relevant matters include, in my opinion, the person's biological and physical characteristics at birth (including gonads, genitals and chromosomes); the person's life experiences, including the sex in which he or she is brought up and the person's attitude to it; the person's self-perception as a man or woman; the extent to which the person has functioned in society as a man or a woman; any hormonal, surgical or other medical sex reassignment treatments the person has undergone, and the consequences of such treatment; and the person's biological, psychological and physical characteristics at the time of the marriage, including (if they can be identified) any biological features of the person's brain that are associated with a particular sex.

It is clear from the Australian authorities that post-operative transsexuals will normally be members of their reassigned sex.  "I am aware that some transgender people are lobbying for the recognition of "identity" in the law instead of "sex", but am not supportive of that position.   I do support their right, however, to be free from discrimination in their daily lives in such circumstances as the provision of goods, services, accommodation and education, and in areas such as participation in clubs and sports.” 

I would be most pleased to have a response.

Yours sincerely

Karen W Gurney

DipAppChem, SIT; ADASc(ResMngt), Frankston; DTS; DipPSMngt, RMIT; BAppSc(Biol), LLB(Hons), Deakin.


20/04/2007 07:32 a.m.

Subject: RE: Validity of UK Birth Certificates in Cases of Transsexualism  absent surgery

Dear Karen

Thank you for your email.

It has been forwarded to the appropriate staff member, who will respond within five working days. 

If you have any further enquiries, please contact us again by email or phone Call Free (NZ) 0800 22 52 52 or if overseas (+64 4) 474 8150, or visit our website: http://www.bdm.govt.nz/

Kind regards

Danny Tahau Jobe

Client Information Officer - Kaipűrongo Kiritaki

Births, Deaths and Marriages Office - Whanautanga, Matenga, Marenatanga

Department of Internal Affairs - Te Tari Taiwhenua


 

Dear Karen

Thank you for your email. 

I regret I am not able to provide you with advice on the specific matters you raise.

However, by way of general information, I can advise that if any question arises about whether, for the purposes of New Zealand law, any marriage is valid or void, this would be a matter for the courts to determine.   The parties in such situations should seek legal advice from a qualified lawyer, preferably prior to solemnising such a relationship.

I can advise that, under sections 27 and 28 of New Zealand's Family Proceedings Act 1980, a New Zealand Family Court can determine whether any marriage (whether or not it was solemnised in New Zealand) is valid according to the law of New Zealand. 

Regards

Susan Hillda

Solicitor

Births, Deaths and Marriages

The Department of Internal Affairs Te Tari Taiwhenua

Direct Dial: +64 4 382 3533

Fax: +64 4 382 3581

www.dia.govt.nz


From: Karen Gurney

Sent: Saturday, April 28, 2007 5:10 AM

To: Susan.Hillda@dia.govt.nz

Subject: RE: Validity of UK Birth Certificates in Cases of Transsexualism absent surgery

Dear Susan

Thank you for your response and the advice it contained.  The NZ Court and the Australian Court have similar powers in regard to declarations concerning the validity of marriages.

As you will undoubtedly be aware, in Australia marriage falls under the jurisdiction of the Commonwealth, whereas the registration of births is a matter for the States and Territories.  Victoria has a provision in its BDM Act which allows the Registrar to issue a "Recognition Certificate" to a person born elsewhere than in Victoria who, if born in Victoria, would be eligible to have their birth certificate amended as to sex as a consequence of them undergoing sex affirmation surgery.  The person is then a person of their affirmed sex for all purposes of the law insofar as the powers of the Parliament permit.  A person holding a similar certificate issued by another jurisdiction after sex affirmation treatment is likewise a member of their affirmed sex under Victorian law.

I now believe that the other States may shortly follow suit and would like to recommend that your Registrar consider giving her/his support to the incorporation of such a provision in the NZ Act.  This would avoid the sort of difficulties and costs faced by the two recent applicants in the Family Court who sought declarations as to their sex after they were unable to meet the rather strange requirements of the UK Gender Recognition Act despite having had surgery.

I have copied the Human Rights Commission so they may take the issue up as part of their current inquiry into discrimination against people who were born with intersex conditions, including transsexualism.

Best wishes

Karen W Gurney

DipAppChem, SIT; ADASc(ResMngt), Frankston; DTS; DipPSMngt, RMIT; BAppSc(Biol), LLB(Hons), Deakin.



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