and express their self-defined gender identity, regardless of their legal gender markers.178 Children under the age of 18 are covered in section 29 of the current Births, Deaths, Marriages and Relationships Registration Act. The impact of the proposed changes to the Bill would be significant for transgender children and youth who are required to show a birth certificate as proof of identity, such as when enrolling in school. There is an assumption that children cannot consent to legal gender recognition processes because of their age or level of understanding. The New Zealand passport policy provides a good practice example of access to recognition before the law for children under the age of 18. In addition to self-determining the sex on their passport through a statutory declaration with support from a legal guardian, an applicant also requires a letter of support from a counsellor or health professional.179 People with variations of sex characteristics Like some transgender people, individuals with diverse sex characteristics may need to amend their identity documents. While the right to legal recognition is a pressing issue for intersex people, it is secondary to ending surgical and medical intervention without their own informed consent and their right to bodily autonomy, discussed in the following chapter. It is against good practice regionally and internationally to include a third option for ‘intersex’ when registering the sex of a new-born.180 International human rights treaties require that children be registered immediately after birth.181 This registration includes a name and the right to acquire a nationality, but does not require States to register sex or gender. The intersex human rights movement calls for the registration of intersex children as female or male at birth, with the awareness that, like all people, they may grow up to identify with a different sex or gender. A joint consensus statement by Australia and New Zealand intersex community organisations and independent advocates in 2017 affirmed this position by asserting “[t]he larger goal is not to seek new classifications but to end legal classification systems and the hierarchies that lie behind them.”182 As intersex is an umbrella term for more than 45 variations in sex characteristics, there is no one intersex sex. It is not a sex category, nor a gender identity. Variations in sex characteristics are not the same as non-binary genders. The majority of intersex people identify as male or female,183 and a third category reinforces the idea that intersex people cannot be (real) men or women. Further, a separate category reinforces the idea that documents should be based on biology. This is not supported by a rights-based model of selfdetermination.184 While based on good intent, unintended consequences of registering a baby as intersex may encourage non-lifesaving surgical procedures to be performed so as to avoid this classification. Recognition before the law is key to the enjoyment of rights for all people. The State has an obligation to “provide access to legal recognition in a manner consistent with the rights to freedom from discrimination, equal protection of the law, privacy, identity and freedom of expression.”185 At present, New Zealand legislation is far from established international good practice with regard to the right to legal recognition, preventing barriers to the full enjoyment of human rights for transgender, non-binary, and intersex people. United Nations Office of the High Commissioner for Human Rights “Embrace diversity and protect trans and gender diverse children and adolescents” (press release, 17 May 2017). 179 Department of Internal Affairs “Information about changing sex / gender identity” (2019) <https://www.passports.govt.nz/>. 180 Joint statement by Australia and Aotearoa/New Zealand intersex community organisations and independent advocates Darlington Statement (March 2017) at [8]. See also Participants of the Third International Intersex Forum Malta Declaration (2013). 181 Convention on the Rights of the Child GA Res 44/25 (1989), art 7; International Covenant on Civil and Political Rights DA Res 2200A (XXI) (1966), art 24; Convention on the Rights of Persons with Disabilities GA Res 61/106 (2006), art 18(2). 182 Joint statement by Australia and Aotearoa/New Zealand intersex community organisations and independent advocates Darlington Statement (March 2017). 183 Tiffany Jones “Intersex and families: Supporting family members with intersex variations” (2017) 17 Journal of Family Strengths art 8. 184 International Covenant on Civil and Political Rights (1966), art 1. 185 Victor Madrigal-Borloz Report to the General Assembly by the Independent Expert on protection against violence and discrimination based on sexual orientation and gender identity UN Doc A/73/152 (12 July 2018) at [21]. 178 33