Appendix One.pdf

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From: WOOD, Jesse (WELLHO)
Sent: 03 May 2021 1:28 p.m.
To: 'Frances Muir' Out of scope
Cc: Kate Raggett Out of scope
; Victoria Buchanan
Out of scope
; HORAN, Marian (WELLHO)
Out of scope
; CAMERON, Michael (WELLHO)
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Subject: RE: Out of scope
For your review - Cabinet paper on BDMRR Bill

Kia ora Frances,

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Corrections could rely on to assess a person’s sex. S 9(2)(f)(iv)

From: WOOD, Jesse (WELLHO) Out of scope

Sent: Friday, 23 April 2021 12:42 PM
To: Frances Muir Out of scope
Cc: Kate Raggett Out of scope
Victoria Buchanan
Out of scope
; MALLINSON, Maxine (WELLHO)
Out of scope
; CAMERON, Michael (WELLHO)
Out of scope
Subject: RE: Out of scope
For your review - Cabinet paper on BDMRR Bill

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Kia ora,

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Please see below some suggested changes to paras 74-75. These changes are to ensure that the
way that placement occurs is correctly discussed.

We do apologise for getting this to you after your Minister had seen the paper, and we do
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appreciate you working with us on it – due to the sensitive nature of the potential changes and
importance to Corrections we want to ensure that the paper is correct.

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74. Corrections determines placements in men’s and women’s prisons under the Corrections
Regulations 2005. The Regulations say that where there is any doubt as to whether a
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prisoner should be regarded as male or female for the purposes of placement and a birth
certificate is supplied, placement must be made in accordance with the sex on the birth
certificate. This was predicated around the current extended Family Court process on the
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basis that Corrections’s processes should reflect this and not require prisoners to repeat a
similar process. If a birth certificate is not provided, a review can be initiated where
considerations include a person’s gender, safety and wellbeing, and wider considerations.
Where people have a history of prior serious sexual offending against their nominated sex,
the placement cannot be reviewed.
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S 9(2)(f)(iv)
Ngā mihi

Jesse Wood (he/him)
Policy Adviser | Corrections Policy
Ara Poutama Aotearoa, Department of Corrections
Wāhi mahi: National Office, Freyberg Building, 20 Aitken Street, Wellington 6011

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fully touched on in the paper – we refer to the Crown Law advice. That analysis
needs to be drawn out more including understanding the potential implications
when this is operationalised.”

We have touched based with our colleagues working on the Justice Sector Identity
Management Strategy and we will note in the paper that changing registered sex raises
risks similar to where a person changes their name and this information is not carried
across agencies working in the justice sector. The paper will go on to note that the
development of the justice sector identity strategy will consider issues associated with
changing registered sex on the accuracy of identity information across justice sector
agencies.

We have made your changes to the Corrections Regulations text with some minor
changes (see below) – let me know if you have any issues with is by tomorrow morning if
possible – this will go over to our Minister in the afternoon.

Give me a call if you would like to discuss.
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Ngā mihi
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Frances

The executive summary now states that:
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1.    My proposals relate to amending how gender is recognised on birth certificates only.
I am not proposing changes to how other agencies and organisations determine a
person’s sex or gender, if that is necessary.  I intend to maintain the policy position
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that birth certificates do not provide conclusive evidence of a person’s sex or gender.
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And the body of paper goes into more detail on the crown Law advice and to clarify that birth
certificates should not be taken as the conclusive evidence of sex:
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2.    The previous Minister of Internal Affairs also cited advice from Crown Law. Crown
Law raised that section 33 in the BDMRR Act, which states that a person’s sex should
be determined by the “general law of New Zealand” is unclear. This provision means
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that birth certificates should not be the determining factor in decisions about a
person’s sex and that consideration should be given to other legislation and the
common law. I intend for this provision to be re-drafted, so its meaning is clarified.
3.    I believe that birth certificates should not be how a person’s sex is determined. In
practice birth certificates are not relied on to determine access to women-only spaces
(eg, changing rooms or schools) or entitlements (eg, sports teams or scholarships)
and this should continue.
4.    Related to this, Crown Law advised that clearer statutory guidance on how sex is
determined could be beneficial (for example, what factors should be considered to
determine a person’s sex). While I agree this could be useful, the matter is broader in
scope than the BDMRR Act and the Internal Affairs portfolio. Work on this matter
would require a cross-agency initiative as processes for determining sex are in place

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From: WOOD, Jesse (WELLHO) Out of scope

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Sent: Thursday, 8 July 2021 9:51 am
To: Frost, Kerryn Out of scope
; HOLDAWAY, Heather Out of scope

Cc: HORAN, Marian (WELLHO) Out of scope

Subject: RE: Heads‐up: LEG paper and SOP for your review tomorrow

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Kia ora both

I was wondering if you had some initial thoughts on this below question.
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Is it known if the self‐identification proposals impact how police/justice determine sex/gender for people being
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taken into custody / facing court cases? This is because any impacts here may subsequently impact Corrections as
we often rely on their determinations of gender/sex to inform our initial prison placement.

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Ngā mihi

Jesse Wood (he/him)
Policy Adviser | Corrections Policy
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Ara Poutama Aotearoa, Department of Corrections
Wāhi mahi: National Office, Freyberg Building, 20 Aitken Street, Wellington 6011
Īmēra O


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From: Frances Muir <Out of scope

Sent: 08 July 2021 9:27 a.m.
To: WOOD, Jesse (WELLHO) Out of scope

Cc: Kate Raggett Out of scope
; Michael Kane Out of scope
; Frost, Kerryn
Out of scope
; HOLDAWAY, Heather Out of scope

Subject: RE: Heads‐up: LEG paper and SOP for your review tomorrow

Kia ora Jesse

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Thanks for your feedback. The LEG paper and SOP will be going up to our Minister today for ministerial consultation
next week.

I have responded to some of your comments below – happy to discuss any more fully if you need.

Ngā mihi

Frances

Frances Muir (she/her) | Senior Policy Analyst | Kaitātari Kaupapahere Matua
Policy Group | Rōpū Kaupapahere
The Department of Internal Affairs  | Te Tari Taiwhenua
Mobile:S 9(2)(a)

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From: WOOD, Jesse (WELLHO) Out of scope

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Sent: Friday, 2 July 2021 11:03 AM
To: Michael Kane Out of scope

Cc: Frances Muir <[email address]>; Kate Raggett <Out of scope
; Susan Arcus
Out of scope
Anne O'Driscoll Out of scope
HORAN, Marian (WELLHO)
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Subject: RE: Heads‐up: LEG paper and SOP for your review tomorrow
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Kia ora
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Thank you for giving us an opportunity to feedback on
the this SOP.
We have several comments below.
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  One point of interest, and this may be a question for police / justice. Will the self‐identification proposals
impact how they determine sex/gender for people being taken into custody / facing court cases? This is
because any impacts here may subsequently impact Corrections as we often rely on their determinations of
gender/sex to inform our initial prison placement. If you could put us directly in contact with the policy
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people from police/justice we are happy to discuss this with them.
Self‐identification for birth certificates should not impact how other agencies, including police and justice determine
the sex and gender of people. The policy intent is to amend sex on the birth register/birth certificates not how other
agencies determine and record sex or gender. We understand from Police that birth certificates are not how they
determine gender for offences.  I have copied in Heather and  Kerryn our Police and Justice contacts in case you
would like more information.
  In paragraph 10 you could potentially add a sentence acknowledging the confusion with the word sex on
birth certificates now that it sometimes means gender as well as sex. Thanks.
  This might be in the RIS. But if sex markers on birth certificates are expanded has it been explored how this
will interact with databases and info collection from agencies, businesses etc.
We do not believe other agencies and organisations systems need to be updated to reflect the range of markers
available on birth certificates. As above, the policy intent is not to change how other agencies or organisations
determine a person’s sex or gender. As set out in new section 80(2) individuals and agencies can take into account
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other matters. We will work with other agencies that may rely more on birth certificates as part of implementation
eg, education and NZTA.
  Is it known what the impacts are of differing sex markers when doing international paperwork, e.g.
citizenships, visas, etc?
If I understand correctly, your question is about New Zealanders applying for visas and citizenship applications
overseas? We haven’t looked into this specifically due to our time constraints, but do not foresee it as being a
problem. In some case people may need to provide birth certificates when applying but we are not aware of any
requirements for the gender/sex information on the birth certificate to align with  marker options in other countries
paperwork. If this became an issue, we look at issuing guidance as we currently do for traveling on passports with a
“X” marker.
  We note some concern about the lack of consultation being undergone on changes, but acknowledge that
consultation will be undergone further at select committee. Thanks.
  In paragraph 28, you might want to make it clearer that people born overseas cannot obtain a family court
declaration.  It is not clear currently. Thanks.
Happy to discuss any of these points through this further.
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Ngā mihi
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Jesse Wood (he/him)
Policy Adviser | Corrections Policy
Ara Poutama Aotearoa, Department of Corrections
Wāhi mahi: National Office, Freyberg Building, 20 Aitken Street, Wellington 6011
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Īmēra: JOut of scope














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From: Michael Kane Out of scope

Sent: 18 June 2021 3:07 p.m.
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To: MALLINSON, Maxine (WELLHO)Out of scope
WOOD, Jesse (WELLHO)
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>; 'Daniel Perkins' Out of scope

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Kia ora,
Thank you for sending this through for our feedback and for meeting with us to discuss the ongoing
work on self-identification. Please find attached our feedback on the self-identification cabinet
paper. We have given specific feedback on some points that were also discussed in the meeting, and
provided suggested changes to the wording of sections 67-70.
Our most substantive feedback is that the conclusive evidence point should be an explicit agree
recommendation, while retaining the need for your Minister to potentially make further monitor
policy decisions in this area. The conclusive evidence point is not in itself a minor decision. If you
think that a clarification is al  that’s needed can you point us to the exact provision that you think
sets this out. The paper doesn’t cover this off sufficiently currently. It will be important for you to
continue checking in with us at PCO stage around this aspect during drafting, so we can know how it
fits with our regs.
In general, we think the language in the paper could be nuanced to refrain from using ‘disaster’
language that is often associated with minority rights discussions – problem, issue, concern etc –
unless this language is warranted. This is because it could feed into bias, particularly when this
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language is used around minority groups.
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As we mentioned in the meeting, we recommend the paper gives further consideration to other
impacts of the bill, such as what it will mean for the criminal charge of male assaults female, single
sex schools etc. You outlined these were being addressed by agencies operationally in our meeting,
however it could be useful to explicitly call out some of these impacts out in the Cabinet paper. It
seemed like this analysis was not fully fleshed, which is a concern at poli
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Para 46 should go into more depth around the risks related to identity fraud – particularly to the
justice sector, as mentioned in our meeting you could potential y consult further with the JSIMP
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team at DIA.
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s 9(2) (h)
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As set out before, there is a human rights dimension that might not have been ful y touched on in
the paper – we refer to the Crown Law advice. That analysis needs to be drawn out more including
understanding the potential implications when this is operationalised.
We have also have some suggested
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you want to propose alternative text, but note that changes are needed to the framing and we’re
happy to engage further via email and over the phone.

The impact of self-identification on the placement of people in prisons
67. Birth certificates are rarely required in legislation to determine someone’s sex or gender.
There is only one instance where the sex on a birth certificate would have direct implications
for other legislation and regulatory frameworks.
68. The Department of Corrections (Corrections) makes decisions about placements in men’s or
women’s prisons under the Corrections Regulations 2005. Currently where a birth certificate
is supplied, the placement must be made in accordance with the recorded sex on the birth
certificate. If a birth certificate if not provided, a review can be initiated, where
considerations include a person’s gender identity, safety and wellbeing, and wider safety
considerations. Where people have a history of prior serious sexual offending against their
nominated sex, the placement cannot be reviewed. This regulatory framework was designed
around the current Family Court process.
69.S 9(2)(f)(iv)

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70. I also note that when the Select Committee considered the Bill, a point was raised about the
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implications of a self-identification process on accommodating people in prison. This issue
was also raised in advice from Crown Law. There was a concern that removing the Family
Court from the process could enable people to falsely change their registered sex to
determine their prison placement. While there are different perspectives on the extent of
this risk, this approach would mitigate this concern.
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