Gender self identification

Aotearoa New Zealand has had a history of being pioneers in social change, either as the instigator or an early adopter, and has at times been described as the world’s social laboratory. Here’s a few I can think of without recourse to to an online search:

Universal suffrage, old age pension: socialised medicine; a comprehensive social welfare system; inflation targeting; the 40-hour week; an arbitration system for workplace disputes; decriminalisation of homesexuality; gender self-identification on many legal documents; same sex marriages; state funded remote learning for school aged students; legal personhood to elements of nature (forests, and river basins etc), to name just a few.

On the other hand there are some social changes that remain uniquely Kiwi. For example: ACC, a universal no-faults accidents compensation and rehabilitation scheme; PHARMAC, an agency that negotiates the supply and purchase price of pharmaceutical medicines and devices with manufacturers and distributors on behalf of the nation; decriminalisation of prostitution.

As is only natural, there are critics of every social change, but on the whole, I believe we as a nation are better off because of these changes. Many of the changes have been deemed radical, especially by outside observers. These are often the same sources that describe Aotearoa New Zealand as conservative, unimaginative, and even stuffy. Generally, I don’t think Kiwis see either ourselves or the social changes this country has pioneered as being radical.

Instead, I think the Kiwi spirit of being pragmatic and our sense of fairness and egalitarianism is largely at play, along with a liberal sprinkling of a “can do” attitude. In other words, the changes have not been seen as radical or reforms, but instead viewed as practical solutions to problems that unfairly burden sections of society. One MP (Member of Parliament) recently made the observation that law making is not for the majority (they can look after themselves), but for the disadvantaged – those to whom society denies equal rights and opportunities.

A week ago today, the BDMRR (Births, Deaths, Marriages and Relationships Registration) bill passed its third and final reading in Parliament. The bill, as it was originally introduced to Parliament in 2018 was to update a previous act of the same name to streamline it, tidy up some inconsistencies and to take into account changes in technology. Nothing in it that could have been considered controversial or radical, so why has it taken three years to reach this point?

During the Select Committee stage, the interested parties can present oral and/or written submissions on the proposed law. During this process, there were a significant number of submissions asking for the right to self-declare the gender marker on one’s birth certificate, in the same way as we have been able to do for several decades on official documents such as a driver’s licence or passport. Up until now, the gender marker on birth certificates could be changed only by submission to the Family Court. By unanimous decision, the Select Committee recommended amendments to the bill allowing for self-identification.

This was a leap too far for the coalition government of the day, because the proposed amendments were added by the Select Committee after the closure of public submissions and made significant changes not foreseen at its introduction to Parliament. In effect, while those desiring the changes had been heard, there had been no opportunity for a wider perspective on self-identification to be heard – an essential aspect of democratic principles.

The government of the day, decided to delay the passage of the bill until a new round of consultations and public submissions regarding self-identification could be held. In Aotearoa, this can often take considerable time. Finally, earlier this year, a SOP (Supplementary Order Paper) covering the proposed self ID changes were introduced to Parliament and the public were able to make submissions specifically on gender self-identification.

At the completion of hearings, the Select Committee recommended some minor changes and these were accepted by Parliament. Finally on Friday, the BDMRR bill, with gender self-identification, was passed by Parliament. What perhaps was surprising what the majority by which it passed.

I appreciate that gender identification, whether or not it’s by self-identification or not, can be a controversial topic. The current (toxic) arguments that seem to be part of the argument in the UK and the US were largely lacking here, but nevertheless, I expected some MPs to very vocal in their opposition to self identification. I was quite surprised by how little there was.

A common theme that many MPs spoke to was that while the self-identification provisions will have little to no impact on most Kiwis, it will have a significant positive impact on a small sector of the community – the transgendered, intersex, non-binary and gender nonconforming.

Not one MP spoke in opposition to self identification. A number brought up the fact that as the gender of those who do not have a NZ birth certificate such as immigrants, refugees and asylum seekers and temporary residents, who are not covered by the provision of the new act will be worse off than they are at present. There is already a large body of MPs who are intent on seeing this anomaly corrected under separate legislation.

So how many Parliamentarians opposed the legislation? Not one. The BDMRR bill, including all the provisions for gender self-identification was passed unanimously. Every MP, be they from the centre left Labour Party, the centre right National Party, the libertarian ACT Party, the environmentalist Green Party, or the indigenous Māori Party, voted for it.

It’s not that common for legislation to pass unanimously. It didn’t happen with the introduction a Social welfare system, ACC, PHARMAC, homosexual law reform, the decriminalisation of prostitution, civil unions or same sex marriages. Even changes to gun ownership laws following the Christchurch mosque shootings had one dissenting vote, so I was more than a little surprised by a unanimous decision in this case.

Pay equity versus pay equality

Are “market forces” capable of ensuring a “fair day’s pay for a fair day’s work”? The fact that almost every nation has legislation requiring women to be paid the same as men for the same job would indicate that this is not so.

Pay equity vs equal pay
Pay equity is about women and men receiving the same pay for doing jobs that are different, but of equal value (that is, jobs that require similar degrees of skills, responsibility and effort).
Equal pay is about men and women getting the same pay for doing the same job.

Historically, there has been pay disparity between the sexes, but since the early 1970s, equal pay laws in Aotearoa New Zealand require that men and women should be paid equally for the same for jobs of equal value, even if those jobs are different. In theory that should result in everyone being paid equally for work of equal value – pay equity. That never happened.

The problem with the legislation is that pay equity could only be claimed through the courts– there was no provision for pay equity to be negotiated through the existing “good faith” bargaining framework. Litigation can be a costly and lengthy process and this has resulted in jobs that have historically been female dominated continuing to be paid less than similar jobs where the workforce is predominantly male.

Kiwis are not a litigious lot by nature and workers are usually reluctant to take their employers to court. Following a landmark court decision in 2014 that resulted in significant pay increases to those working in the aged care sector, the unions, employers and government agreed there had to be a better way to ensure pay equity. The outcome was the Equal Pay Amendment Bill that passed through it’s final stage in Parliament at one minute to midnight yesterday.

The amendment should benefit those who have been underpaid due to systemic sex-based discrimination. According to the Minister for Workplace Relations, Andrew Little, the Bill makes it easier to raise a pay equity claim, and encourages collaboration and evidence-based decision making to address pay inequity, rather than relying on an adversarial court process. Employers already have a duty not to pay people differently on the basis of sex – this Bill helps parties to come to an agreement about what equitable remuneration would be, and makes court action a last resort rather than a first step.

A modern and more effective system for dealing with pay equity claims is long overdue. It is just one step in a long journey towards gender equality, the work does not end here

Andrew Little, Minister for Workplace Relations

As Andrew Little has stated, this piece of legislation does not resolve all gender inequality – it’s just another step in that direction. What’s next?