I have heard the retort, “but this is my country!”

But that is not for me, because this is is distinctly not my country.

Neither is that country—the one I came from.

Nor is this country usually theirs—the instigators'.

Countries are not real, anyway.

What about “the place I came from”? Probably like our firebrand foe, I come from many places. Which one should I go back to?

Perhaps our agitator should confer with the reactionaries of all those places, to determine the best solution, first.

The right response seems to be, “this is not my country, not your country, not a country; and I won't go back, I can't go forward, and neither, in all likelihood, can you; now where shall we go from here?”

Half my mind slips from the hand, Like a fleeting fistful of sand.

South of Fort St. George by the sea, Adyar erodes absentee memory.

A linguistic legacy of Macaulay's colony, Still, English halts Hindu/Hindi hegemony.

How, then, did I forget Tamil, or Telugu, Or, mainly, meri pehli zabaan, Urdu?

[A word from our sponsor:] Some things leave you speechless, But there's Amir Khusrau, for everything else.

This week I was invited to recite a poem among a community of Indian progressives, on the theme of resistance. After searching for a poem already written, I decided to scratch an itch and compose something originally.

That itch occurred because I had been reading Edward Said's Culture and Imperialism at the same time. It is a book that devotes some attention to the matter of resistance against imperialism, after deftly dismantling how culture promotes imperialism. It advances ideas about the metropole and the periphery, the voyage in from the Global South to the North, contrapuntal analysis, and orientalism. Much of the theme of resistance is negative advice, however—cautionary notes about nationalism and nativism. Although Said begins developing a notion of liberation as an alternative strand of resistance, I found the book nevertheless left me with more questions than answers.

Largely, that may be due to the book's age. It was published in 1993, after the first invasion of Iraq under the first Bush. Said died ten years later around the time of the second invasion of Iraq under the second Bush, tragically. A lot has happened since then—Facebook, Trump, Modi, COVID, etc. Like so many people, I often wonder what Said would say about our time today—what would be the same, and what new analysis there could be.

So for the poem, I decided to call Edward Said and ask. The audience is invited to eavesdrop on my side of the call, performed with a prop phone and all. Here is the poem:

Hello Edward

Hello Edward, long-time fan, first time caller, I have a few questions if it's no bother. If you were here, what would you make of our absurd theatre? Take Culture and Imperialism, or imperialism minus the culture—

If imperialism was built with culture, what then of imperialism today? No more than thuggery, raw power, and profit—for some, anyway. There are no great authors here, no imagination, that's passé. What would you call that, Edward? Vultures and Imperialism, say?

(By the way, do you remember an upstart called Modi? You won't believe what happened to that toady— But that's for another time, that story, Or another place, if you want, sorry.)

And what of Orientalism, that grand venture? It's stripped bare today—I said there's no more culture— All we have is capitalism in its pure structure. (Yes, with Chinese characteristics, to be sure…)

Thing is, Edward, I see what you mean about becoming resistant. But how do I decolonize my bank account and my rent? How did you do it? I mean, getting paid to dissect and dissent, I want to know that contrapuntal argument.

I'm just a part-timer on this beat, We protest on public holidays, when there's time off work to meet, But nevermind finding the time to march on the street; My question is, how do we make new public holidays, with a tweet?

Ah, you don't know Twitter! What would you make of culture coded into NFTs, I wonder? NFTs? Well, I don't know how to explain it, I'm not a grifter. Soon I'll be a cryptocurrency conscientious objector.

Tick tock, TikTok, so where did culture go? Do you really want to know? Facebook reduced it to an algorithm, just ones and the odd zero. Artificial intelligence tells whom to love or lynch—the author is no more.

Isn't that novel? We count everything in binary. We did away with the Third World, you see. Now there is the First World, and then the world of zero, mostly. We deprogrammed culture to save imperialism, without irony.

What does resistance look like, then? Here we encrypt every message we send. I wonder, Edward, if you would use Signal, Telegram, or another trend? We hide words, faces, pasts, selves, friends and lovers—end to end.

To what end? I thought you might tell us that. If not nationalism, nor nativism, then what's not bad? If not the capitalist, nor the technocrat? Did you say liberation to equal the colonizer is where it's at?

The final anthem might be like your liberation soundtrack. Yet, after my “voyage in” to the metropolis, I want my money back. Twenty-two years since arrival and I have not even begun to unpack— Is that simply a slight setback?

You know that I can't go home—like yours, mine too has gone yonder. Distance, not time, makes the heart grow fonder—or does it founder? Fondness alone can't stop the plunder by a pretender. Can a voyager into the Heart of Whiteness stand to be a bystander?

The voyage in takes us to strange places. In a strange colony, I find history does not repeat, but paraphrases, Resistance here and resistance there start to resemble a coin's faces, Heads or tails, the struggle never ceases.

But if we must equalize the colonizer, Ed, we've taken a wrong turn. Liberals have allied with the state for the freedoms we yearn— Carceral, military, surveillance state—they say, how else to govern? Well, that's what I've seen in my sojourn.

My point, Edward, is we are as far away as ever from an answer. I am starting to wonder if we even need to get closer. Can one be a resister without becoming an explorer seeking closure? What if, maybe, not knowing is better?

If you know better, then let us know, Ed. Some things can only be answered by the dead.

Unusually, the judge embarked on a journey of discovery and overcoming bias in the process, to eventually find in favour of the LGBT+ petitioners, and then issue a wide-ranging ruling that promoted LGBT+ rights in government and society. For that alone, it is a worthwhile case to study.

But the media interpretation of the case has co-opted the narrative in a more sensational direction. And this requires us to be cautious in understanding what has actually happened with the ruling, and what lessons we can draw from overseas. As one example, The Independent (UK) ran this headline:

For context, banning conversion therapy is a contentious matter in the UK, as LGBT+ advocates and allies have been demanding a ban (apparently relying on criminalisation, the racist police, courts, prisons, and deportation—systems that have typically hurt rather than helped queer and trans people of colour). Meanwhile, transphobes, conservatives, and bigots, have been resisting the law change on their usual spurious grounds. Prominently, the Conservative government has been delaying and seemingly backing away from its promise to enact a ban. So it is understandable, then, that a new ruling in a former colony that appears to address conversion therapy in a way sympathetic to LGBT+ people, should be re-cast by the British press in terms of the high drama of a proposed ban in British terms.

In a parallel but connected political world, the New Zealand government has promised to introduce a ban on conversion therapy. At the time of writing, no government bill has been published, but there are clues about the nature of the bill to come. A Member's bill (in the name of Marja Lubeck MP—a backbench member of the governing party) proposed a racist, homophobic and transphobic criminalisation regime that also offers nothing for victim support, that helped to shift Labour party policy in the 2020 election, to endorse making conversion therapy “a crime”, in their manifesto. More recently, the Minister of Justice suggested that the government will introduce criminal “and/or” civil offences to that effect. The opposition to this Thatcherite tough on crime solution to a real social problem, has so far only come from predictably bad-faith local actors such as homophobes, transphobes, and bigots, arguing on the same debunked spurious grounds as their counterparts around the world.

In this New Zealand milieu, the sensational story of yet another jurisdiction purportedly ruling to ban conversion therapy seems tempting:

Tamil Nadu is set to become the first Indian state to ban ‘conversion therapy’ following an unprecedented and progressive judgment by the Madras High Court on Monday, aimed at making society more inclusive towards the LGBT+ community. pic.twitter.com/XQvX8OMog6

— Shaneel Lal (They/Them) (@shaneellall) June 13, 2021

The ruling

Therefore, I took upon myself, the vested responsibility and the duty to deliver justice in all its forms and spirit, of cutting across personal prejudices and notions and setting forth to, at the least, educate myself lest my ignorance interfere with in guiding homosexuality and the LGBTQIA+ community towards social justice.

Nevertheless, it is fair for the press to hone in on a single detail like conversion therapy. We will return to the broader ruling later. But for now, let us see what the Court said about conversion therapy. Let us drill down the headings and items:

43. This Court proceeds to issue the following interim guidelines/directions:

So the Court is introducing guidelines and/or directions. These are not, on the face of it, necessarily binding (at least, in the case of guidelines that might be clearly not directions).

[43.] H. For the sake of creating awareness, this Court is suggesting the following sensitization programs to be conducted by the concerned Ministry of the Union/State Government(s). This list is only indicative and not exhaustive.

Here we see item 'H' which is clearly described by the Court as “suggesting”, “[f]or the sake of creating awareness”. Items A to G prior to this seemed more clearly to be orders or directions. Item B, for instance, is self-described as an “order”.

So it is clear, then, that the suggestions in item H are not, on the face of it, binding orders, but rather interesting ideas that, if voluntarily adopted by the stakeholders named subsequently, might provide relief to LGBT+ people. In the Court's words:

This Court expects the respective departments/authorities and institutions to implement these guidelines in letter and spirit not for the sake of complying with a judicial fiat but to ensure that this society evolves, and the LGBTQIA+ community is not pushed out of the mainstream of the society.

While it is progressive, the expectation set out above is arguably on the verge of what might be considered the proper realm of the legislature and not the judiciary (under implicit separation of powers). The Court gives deference to the legislature:

I sincerely hope that the legislature also starts evincing more interest on this very important issue. This is more so since people, especially the present generation have started talking more about it and they are desperately wanting to find a solution at least to the extent that persons of the LGBTQIA+ community are left to live peacefully. Till the legislature comes up with an enactment, the LGBTQIA+ community cannot be left in a vulnerable atmosphere where there is no guarantee for their protection and safety. This gap is now sought to be filled in by way of issuing guidelines till law takes over and guarantees safety and protection.

Therefore it appears the item H which explicitly introduces suggestions for the sake of creating awareness, under the heading of “guidelines”, cannot be understood as binding. Measures suggested by the Court tackling conversion therapy under item H, neither makes for a legal ban, nor a binding judicial order that would amount to a ban.

What guidelines, then, are given by item H?

There are sensitisation programmes suggested for stakeholders like the Police and Prison Authorities, awareness programmes for District and State Legal Service Authorities and the Judiciary, or altered curricula in Educational Institutions, etc.

Conversion therapy

In the context of these apparently voluntary sensitisation trainings, education, and reforms, there is also a suggestion that “Physical and Mental Health Professionals” should ensure the following (quoted out of order for convenience):

• Assistance to LGBTQIA+ community and their environment, by affording Physical and Mental health support who are facing stigma and discrimination from society.
• Mental health camps and awareness programs to understand gender, sexuality, sexual orientation and promote acceptance of diversity.
• Sensitization programs as provided by Rule 10(7)(b) of Transgender Persons (Protection of Rights) Rules, 2020 shall be in addition to the above said.
• Prohibit any attempts to medically “cure” or change the sexual orientation of LGBTIQA+ people to heterosexual or the gender identity of transgender people to cisgender.
• To take action against the concerned professional involving themselves in any form or method of conversion “therapy”, including withdrawal of license to practice.

The final two points listed above are the only references to conversion therapy in what is an otherwise broad-based outline of policies to attack LGBT+ discrimination from many angles.

One interesting feature of the Court's approach to conversion therapy is that it is effectively aiming for the status quo of New Zealand. That is, the Court is suggesting (not binding) professional bodies to self-regulate by prohibiting conversion therapy among their own ranks, and to revoke the licence of any conversion therapy practitioner. In New Zealand, this is more or less the present situation, even before enacting any kind of legal ban. To quote a submission by Shaneel Lal for the Conversion Therapy Action Group:

The New Zealand Psychological Society, NZ College of Clinical Psychologists and the New Zealand Psychologists Board all have adopted a code of ethics that prioritise the well-being of patients and nondiscrimination as core tenants to ethical practice. Under these guidelines, conversion therapy does not constitute ethical practice, according to clinical psychologist Rita Csako. Counselling on the basis that LGBTQIA+ identities are unnatural is discriminatory and does not demonstrate respect for the patient and engaging in a practice that has a mostly negative impact on mental health means a practitioner is not prioritising the patient’s well-being. However, this code is not legally binding, and does not apply to the many non-professionals who practice conversion therapy either.

In New Zealand, conversion therapy has been condemned by key stakeholders including: the Human Rights Commission; Royal Australian and New Zealand College Psychiatrists; New Zealand College of Clinical Psychologists; New Zealand Association of Counsellors; Aoteroa New Zealand Association of Social Workers; and Rainbow Youth.

The Madras High Court cannot legislate a ban, so it can only go so far as to suggest that professional bodies volunteer to regulate themselves, like similar bodies do in New Zealand. The suggestion is far from the kind of statutory provisions sought in New Zealand or the UK.

This fact alone undermines the headline by The Independent. The body of the article by The Independent appears to make a factual error in its characterisation of the non-binding suggestion of the Court's (emphasis mine):

With the court order banning any “attempts to medically cure or change the sexual orientation of LGBTQIA+ people to heterosexual or the gender identity of transgender people to cisgender,” Tamil Nadu in south India is set to be the first state to ban conversion therapy.

It would be better written, “With the court's suggestion for professional bodies to self-regulate, short of a ban …”.

A more accurate headline: maybe, “Indian state judiciary first to recognise shortcomings in law and society that discriminate against LGBT+ people”.

Lessons for New Zealand

Despite the narrower nature of the Court's ruling, than what The Independent tells us, it is still a very interesting case to scrutinise for places like New Zealand.

The two main features are in procedure, and in policy (even though the Court cannot legislate).

First, in terms of procedure, the novelty in this case was the heart-warming and humane approach the judge took to recognising his own prejudices, and working to overcome them through consultative processes (with a psychologist who was LGBT+-affirming, as well as community members). Also interesting is the basis for the Court's endeavour, which it justified in terms of “social justice”, that may or may not constitute precedent in Tamil Nadu.

Second, in terms of policy, while the Court stopped short of making fully binding orders on a wide range of relevant matters, it nevertheless did issue several directions and guidelines across many areas.

Setting aside the details of each direction or guideline for a moment, it is most interesting to remark on the breadth of matters that the Court took into consideration: discrimination in policing, courts, healthcare, education, employment, families, as well as, empowerment through state services, and the provision of rights in the law. The Court reasoned:

I strongly feel that the change must take place at a societal level and when it is complemented by a law there will be a remarkable change in the outlook of the society by recognising same-sex relationships. For a proper understanding we can recall how persons with differential abilities and mental illnesses were treated by this society some time back, and how the awakening in the society complemented with enactment of appropriate laws have brought in a huge change in recognising the rights of such differently abled persons, and the attempts made to bring these persons also within the level playing field.

The issue on hand is very important and requires awakening in the society, and law, by itself, may not be able to achieve the desired result. A law cannot be effective without it being acknowledged by the society and such an awakening in the society is not going to happen overnight. It requires regular deliberation and it has to necessarily fall out very strongly from the constitutional institutions and I believe that the judiciary and particularly the constitutional courts have a major role to play in spreading this awareness and awakening the society.

Given the need for such a fundamental shift in society, it is not surprising that, “[t]his gap is now sought to be filled in by way of issuing guidelines till law takes over”—guidelines which are broad in impact, cutting across many governmental portfolios.

This is especially relevant in New Zealand because no such broad-based strategy is being pursued to address LGBT+ discrimination (including the real problem of conversion therapy which must be ended). Instead, New Zealand has become lately hyperfocused on proposed law changes like a racist Births, Deaths, Marriages, and Relationships Registration bill, or a carceral conversion therapy ban involving police, courts, prisons, and deportation.

New Zealand is different in many ways to a place like Tamil Nadu, but the nature of the “gap” is similar at least in that LGBT+ people face discrimination across many aspects of their lives (or portfolios of government). In a previous post about allyship, I linked to a sample policy that takes exactly the kind of broad-spectrum approach to ending LGBT+ discrimination that the Madras High Court did, but in the New Zealand context. (Note: that example proposal sought to overcome racial inequities faced particularly by tauiwi migrants and refugees, as seen from my individual perspective alone, but did not involve broad community consultation or specifically any focus on Indigenous concerns, although there are common interests. You can imagine an even more comprehensive policy that actually accounted for all those needs and rights, if Government would develop such a policy programme with grassroots consultation.)

Instead, Government has distracted us with hyperfocused legislation like a carceral, criminal conversion therapy ban, and the racist, exclusionary BDMRR bill. And, as was reported shortly after this year's Budget, Government has exploited the situation, cashing in by cutting or stalling funds for rainbow communities (in an environment where intersectional needs such as for tauiwi migrant and refugee queer and trans people of colour have never been funded at all).

If anything, the overarching lesson from the Madras High Court judgement, for New Zealand, is to refocus on overcoming LGBT+ discrimination on all fronts, demanding that Government takes a multi-pronged approach in all its portfolios, rather than de-funding us in exchange for cheaper, symbolic gestures. The keys to ending conversion therapy are racial equity in resources, community reform, and victim and survivor support.

What of the police?

Another key detail in the Madras High Court ruling is an order requiring police to back off from harassing LGBT+ people. There is a particular history to the problem of Indian families filing missing-person claims with the police when their relative has escaped (or eloped), and the police enforcing conservative cultural norms when they locate the allegedly missing person (and their partner). The Court recognised the role of the police in upholding these norms, which especially hurt LGBT+ people, as in this case. The Court ordered:

A. The police, on receipt of any complaint regarding girl/woman/man missing cases which upon enquiry/investigation is found to involve consenting adults belonging to the LGBTQIA+ community, shall upon receipt of their statements, close the complaint without subjecting them to any harassment.

B. The Ministry of Social Justice & Empowerment (MSJE), has to enlist Non-Governmental Organizations (NGOs) including community-based groups which have sufficient expertise in handling the issues faced by the LGBTQIA+ community. The list of such NGOs along with the address, contact details, and services provided shall be published and revised periodically on the official website. Such details shall be published within 8 weeks from the date of receipt of copy of this order.

The novel finding here is that the police are harmful to LGBT+ people. And that community peer support is a more suitable structure for LGBT+ relief.

Is that so different in New Zealand? Here we know the police are racist, threatening brown youth by photographing them invasively in public. We know the police are unwelcome at the Pride march in uniform, because they are racist, homophobic, and transphobic. We know that specialist police training is required to handle sensitive sexual cases (of similar complexity to, say, conversion therapy victimisation), and the police do not have enough staff, and probably will not have enough in future.

Although the specific cultural behaviours in question may be different in Tamil Nadu and New Zealand, the broader common pattern that police forces around the world remain opposed to the interests of marginalised people—indeed, they historically seem to aid in enforcing that marginalisation.

The Madras High Court was unavoidably moved to recognise this fact, at least in the narrow terms of its case, but its response appears premised on the irredeemable nature of the police, because it wholly rejects their continued participation in LGBT+ people's lives when such missing-person complaints are raised. The Court ordered the police out.

Again, this contrasts starkly with New Zealand's approach to conversion therapy, as, for example, in Marja Lubeck MP's Prohibition of Conversion Therapy Bill. Where someone is being victimised by conversion therapy—more likely to be a person of colour, if New Zealand is like the UK—then New Zealand would have the police intervene and become entangled in the case. That entanglement would put vulnerable, marginalised, racialised communities through all the traditional oppressions of police over-exposure—invasive search and surveillance, uncovering incidental offences, victim blaming, racial profiling, police brutality, etc.

So we see the Madras High Court reasonably distrusting the police and seeking to restrain them, in the name of LGBT+ rights and empowerment, whilst suggesting wide-ranging policies to benefit LGBT+ communities. Yet we see New Zealand seeking to empower the police with more charges to bring against disproportionately racialised communities, whilst cutting budgets for rainbow communities.

Conclusion

One hopes these differences and the wider context contrasting the reported “conversion therapy ban” (in UK or NZ terms) and the Madras High Court's actual judgement, can yield interesting lessons for us to reconsider how we choose to deploy the force and power of the state to actually enable LGBT+ lives.

We cannot presume that New Zealand has solved LGBT+ discrimination in so many ways that the next best thing to do is to send in the police to end conversion therapy. In fact, like Tamil Nadu, ending harmful practices like conversion therapy, will require that, “change must take place at a societal level”, as well as the legislature to start, “evincing more interest”. And the path to that change in the legislature, must involve a broad range of portfolios and material resources. Those resources must be allocated in a racially-equitable way, not merely to benefit Pākehā-coded LGBT+ people, but also Indigenous people, and tauiwi migrants and refugees and asylum seekers of colour, without over-relying on punitive, carceral, or criminal regimes.

The story so far

The Births, Deaths, Marriages, and Relationships Registration Act 1995 (BDMRRA or BDMRR Act) is a New Zealand law that governs aspects of a person's identity in the eyes of the state, including their name and sex marker (as on their birth certificate).

The Births, Deaths, Marriages, and Relationships Registration Bill (BDMRR Bill) is a government bill with proposed amendments to the Act that would allegedly make the process of updating one's sex marker more direct and easier, mainly because it would remove the need to apply to a Family Court judge for a declaration. It would rather rely on a statutory declaration process. So far, so good.

What's missing

Not obvious in the above description is the fact that the new procedure applies to eligible persons defined as those with a New Zealand birth certificate only. It would not support any overseas-born trans, non-binary, or intersex people. That means migrants, refugees, and asylum seekers. But it may also leave behind anyone who is a citizen-by-descent born outside NZ. Roughly 25-30% of the resident population of NZ is overseas-born.

At this point, you may have a number of questions. How does the proposed law define eligibility such that it leaves people behind? Why should New Zealand care about foreign documents it did not issue? Why is it racist to only target New Zealand-born people? How can we fix the bill?

Terminology

This area of the law can be quite confusing and technical. There are different categories of people, each with overlapping but different meanings: citizens, citizens-by-grant, citizens-by-descent, New Zealand-born people, residents, permanent residents, migrants, refugees, asylum seekers, overseas-born people, tauiwi ethnic minority, etc. Each of these may have legal significance depending on the statute in question. Different procedures and regulations may apply to each category.

I will not try to define all these terms here, but be aware that there can be subtle differences that matter tremendously to people in each category. The rest of this article will try to be as accurate as possible with terminology.

The general issue is that all these categories of people—some intersecting with each other—should be treated equally and fairly. So there is not just one singular detail in the current law or the proposed law to focus on, but many angles to consider. We will look at some of them, not comprehensively.

The current law

To understand the benefits and costs of the proposed law, we have to compare it to the current law. To summarise the key provisions of the status quo:

• An eligible adult or child can ask a Family Court to issue a declaration as to sex to be shown on birth certificates. This is a relatively complex procedure, and moreso for children.
• The declaration is served upon the Registrar-General of Births, Deaths and Marriages, to update the register which records births in New Zealand, and possibly New Zealand citizens-by-descent even if born overseas. It may also be served upon any other person (conceivably a foreign government).
• The Registrar-General may, after certain procedures and fees, update the register and issue a new birth certificate, if any of that is possible in a given case.
  • The old information will be kept private (except in special circumstances—somewhat questionably, such as in the case of checking if a proposed marriage is “between a man and a woman”).
• To be “eligible” includes citizens and residents, even if born overseas, meaning that someone without a New Zealand birth certificate could initiate an application to the Family Court and win a declaration as to sex.
• Overseas-born people can conceivably take that declaration to their birthplace's jurisdiction, if it means anything, as some form of evidence. This is practically useless in most of the world, but interestingly has been used with some success at least in the UK (which recognises NZ Family Court declarations within its onerous gender recognition process).

There are clearly many problems with the current system, not least of which is the principled antagonism to self-identification built into the procedure to seek a judge's approval (to their “satisfaction”), and with complex and intimidating legal paperwork (affidavits) with medical evidence. Courts in the common law mould seem naturally opposed to self-identification, and they rather favour findings that meet burdens of proof by other evidence. It is dubious whether a court is an appropriate venue at all for any of this.

The proposed law

So it seems reasonable at first that there is a bill to amend the BDMRR Act, by introducing a standard statutory declaration procedure bypassing the Family Court, relying instead on Justices of the Peace etc., to update a sex marker.

However, the proposed BDMRR Bill strikes out the definition of “eligible adult” or “eligible child” and replaces them with a narrower selection of people: only those whose births were, in the first place, registered under the BDMRR Act. That will only mean those births that took place in New Zealand.

So the tenuous procedure in the previous law to acquire a Family Court declaration and try to use it as some kind of evidence overseas, is neatly removed. What provisions take its place for overseas-born people in the proposed law, then?

None.

Racism

Having no provisions in New Zealand law to support overseas-born people changing their sex marker in New Zealand, including immigrant citizens of New Zealand, makes the new law racist because of the following argument.

1. Those who are from overseas jurisdictions privileged by colonisation that took away wealth, land, and culture, are likely to find relatively supportive—if embattled—governments that allow some pathway to amending their birth records and other documents (such as passports).

   • These are more likely to be white-majority societies.

2. Those who are from other overseas jurisdictions, disadvantaged by colonisation and the hateful norms and laws inflicted by imperialists, may not be so lucky to have supportive legal regimes to amend their paperwork. More likely, they will face criminalisation and persecution.

   • These are more likely to be nonwhite-majority societies.

3. A New Zealand law that only provides for New Zealand birth records and paperwork, can rely on overseas governments to take care of some of New Zealand's citizens and residents, belonging to the first privileged category above.

4. But a New Zealand law that only provides for New Zealand birth records and paperwork, cannot rely on overseas governments to take care of other citizens, residents, and refugees of New Zealand, from the second disadvantaged category above.

5. Predominantly nonwhite New Zealand citizens, residents, and refugees, who were born overseas, will be excluded, by virtue of colonial legacies, combined with New Zealand's current abdication of responsibility in the face of that unfortunate history (some of which it was complicit in perpetrating or exploiting).

Foreign documents not our problem?

But is it actually an abdication of New Zealand's responsibility, if the documents in question were issued overseas? Is it even reasonable to expect little New Zealand to update some foreign document? How can New Zealand be responsible for documents it did not issue?

Let us let the BDMRR Act answer that question:

The BDMRR Act permits any citizen or permanent resident to register a name change—that is, to update a key piece of information recorded in their birth certificate, even if that certificate was issued overseas.

For overseas birth certificates, this is achieved by issuing a name change certificate, rather than modifying the foreign document, and it can be used as evidence in any situation where a name is called for.

Typically, a person's assigned sex marker is recorded in the same way as a name on a birth certificate. So, at a minimum, can New Zealand not issue some kind of, say, sex marker change certificate too?

The distinction between the name change process and the sex marker change process is entirely arbitrary. It is nothing more than the policing of gender. We can already see this in how a name may be changed by statutory declaration or deed poll under the BDMRR Act.

The arbitrary distinction between name and gender properties that both come from a birth certificate—foreign or not—is maintained in the proposed BDMRR Bill, by permitting name changes by citizens and permanent residents, but not sex marker changes.

We take care of our own?

If the double standard for name changes is not a clear enough case to show it is not about which country issues a document, let us also consider the twisted tale of New Zealand's citizenship certificates.

New Zealand issues citizenship certificates. They are New Zealand documents, which record a gender marker. However, they allow applicants to select a nominated gender, which need not align with a birth certificate. How progressive.

The catch is that citizenship certificates cannot be updated—they are supposedly “point-in-time records”. Despite New Zealand issuing and controlling the document, statute does not permit updates.

Suppose there is an immigrant to New Zealand from a transphobic country, who finds it unsafe to be outed until after they become a New Zealand citizen. Suppose this person applies for a citizenship certificate, keeping all their details the same as before—to avoid the risk of being outed in the event of a failed application. Suppose, then, they succeed in their application and become a New Zealand citizen, and then seek to update their citizenship certificate. They will find they cannot do so.

What New Zealand offers, interestingly, is a second-rate “evidentiary certificate”. It is a document issued after-the-fact, to declare that a citizen's gender is other than what the citizenship certificate displays. Now that sounds awfully like our hypothetical sex marker change certificate that was comparable to a name change certificate.

So New Zealand does not even offer a pathway to amend gender on all documents it controls.

Hope for a solution

Now, we know two things from existing laws and procedures:

• It is possible for New Zealand to issue changes to overseas-recorded birth information for citizens and permanent residents at least (e.g. name change).
• It is possible for New Zealand to issue a document representing a sex marker change for citizens at least (i.e. citizenship “evidentiary certificate”).

Then it must be possible to, at least, conceive of a sex marker change certificate as a feasible option. Let us not get too far ahead of ourselves and imagine this is the only solution, but it is enough to show we can expect better than what is proposed for now.

We also know that even if New Zealand controls a document (citizenship certificate), the state takes no interest in making it possible to update sex marker. That tells us something about the motive behind the lawmaking we see, that treats not only gender and sex as a special category that is complicated to update, but also applies narrow definitions of eligibility (or, if I may: worthiness) that disadvantage overseas-born people, who will be disproportionately nonwhite and subject to colonial norms and values of transphobia or interphobia.

It is a bleak picture, but perhaps it can be rectified, given what we learned about name changes and citizenship certificates. How?

Developing policy options

Rather than proposing a single solution—although that tends to sell better—we should explore multiple options and compare benefits and costs. We can iterate on our ideas to see if any options can be improved.

One worthwhile aspiration in developing solutions should be to unify the pathways that New Zealand-born and overseas-born people need to take to update their sex marker on all records. As much as possible, there should be parity.

Option 1: sex marker change certificate

The basic option developed in the argument above is to create a new document which we have called a sex marker change certificate, that can be issued to all applicants, regardless of place of birth, as a result of a statutory declaration.

This certificate could even be used by New Zealand-born people to instruct the Registrar-General to re-issue a new birth certificate, and as evidence in rare cases where the details of a change may be necessary to prove (as an alternative that is controlled by the person, rather than a section 77 lookup in the register).

The same document could of course be issued to overseas-born people. Within New Zealand's jurisdiction, it could be used like a name change certificate is used as evidence of a changed name alongside any other identity documents. While this does not hide old information, it at least prevents the propagation of the wrong gender marker. In some ways, this hypothetical certificate parallels the UK's gender recognition certificate (GRC), but without the same onerous barrier to entry.

Option 2: identity change certificate

We can advance our hypothetical sex marker change certificate in a couple of ways. One is to unify the name change and sex marker change documents into one—after all, the latter may commonly happen at the same time as the former. So we might end up with an identity change certificate—removing emphasis on sex.

Option 3: identity certificate

Another improvement would be to statutorily recognise the new certificate as a valid substitute for an original birth certificate, making it not a change certificate, but simply an identity certificate. That means no party in New Zealand (except in some special circumstances) can reject our hypothetical identity certificate when they ask for a birth certificate. That minimises exposure to the old information in instances where it is not warranted. This is similar to the existing name change certificate in that it is effective New Zealand without updating any overseas document.

But also like a name change certificate, the identity certificate would be redundant for New Zealand-born people, because they can keep using their updated birth certificate with old information automatically hidden. As our identity certificate might no longer record the full change of details, it adds nothing to the statutory declaration for New Zealand-born people. So they can stick with a statutory declaration process, while overseas-born people use identity certificates (as happens with name change already).

Option 4: certificate of overseas birth

For overseas-born people, we could narrow the identity certificate to a substitute birth certificate: we could call it, a certificate of overseas birth. It would be based, after all, on witnessing an original birth certificate—some copy of which might be kept by the government at the time of registration.

In other words, it brings New Zealand back into the business of widely recording overseas births. Historically, New Zealand has recorded overseas births, such as for New Zealanders-by-descent, i.e. those who were born to New Zealand parents outside of New Zealand. Internal Affairs is quite capable of managing birth records with place names outside of New Zealand, per the Citizenship Regulations 2002.

We could, to provide parity for New Zealand-born and overseas-born people in New Zealand, maintain a register of overseas births, which could be automatically updated at any time a person becomes eligible. In the current law, that might be upon gaining permanent residence or citizenship—in which case, the register of persons granted citizenship could be useful.

So, with whatever register we use, our hypothetical record of overseas birth could, by law, be defined to substitute for any overseas birth certificate, through the issuing of a certificate of overseas birth. It would be effective at least within New Zealand's jurisdiction. Being a fully New Zealand-controlled document (a bit like a citizenship certificate), New Zealand could allow for it to be updated freely, perhaps by statutory declaration.

Option 5: return of the citizenship certificate

If we choose to limit documentary self-identification only to citizens, the citizenship certificate itself could take that place through new legislation that would also make it possible to amend the document directly (instead of “evidentiary certificates”).

However, to be as broad-based as possible, the certificate of overseas birth should be more freely available to non-citizens also. It could even be issued at the time of first application or arrival (as in the case of asylum seekers and refugees) for anyone intending to stay long-term.

Any such alternative regime of birth certification also has potential incidental benefits for immigrants besides the gender marker. Those who come to New Zealand from places with hostile, unstable, or dysfunctional governments, may not enjoy the security and reliability of having an important document like a birth certificate re-issued after a house fire in New Zealand, for example. A certificate of overseas birth that is maintained by New Zealand from first arrival, could be reissued more readily.

One downside is that a statutory certificate of overseas birth or identity certificate has perhaps less meaning (if not legal weight) when it comes to overriding an overseas passport (as with permanent residents), than an identity change certificate or a sex marker change certificate.

Another downside is that it relies on the government to collect more information, which is generally a privacy liability.

Unhelpful options

Return of the Family Court?

One major alternative that some people put forward is that overseas-born people might still petition the Family Court for a declaration, after the BDMRR Bill is enacted, and special provisions are removed. No special statutory provision is needed to approach a court for any cause. But this is a problem for three reasons.

First, we have shown that the current BDMRR Act makes the Family Court equally available to New Zealand-born and overseas-born people. That provision arose after a court case under the pre-2008 version BDMRR Act. The old law applied to “a person who has attained the age of 18 years” (and not any defined “eligible” person). Interpreting that law in W v Registrar-General, Births, Deaths and Marriages, Ellis DCJ reportedly found that to satisfy equal treatment under the law, an application for a declaration for an overseas-born New Zealand citizen was warranted.

So the basis for an overseas-born person to gain a declaration was that a New Zealand-born person could also enjoy that right under the law. Under today's law, courts need not apply that interpretation, because statute is clear about who is eligible—a formalisation of Ellis DCJ's ruling.

If the provision for a court declaration is removed, then we fall back to the court's discretion and interpretation of the law, and the test for equal treatment. In that scenario, because no New Zealand-born person would be entitled to a court declaration as to sex, there may be no basis to extend that right equally to overseas-born people. After all, anyone can try petitioning a court for a unicorn or a million bucks if they feel like it, but there is no reason the court has to hear it or issue a ruling in favour.

Anyway, the equal treatment principle might already be satisfied because an overseas-born person could make a statutory declaration just like a New Zealand-born person. Only it would be futile because nothing would be updated. (Similarly to the symbolic Family Court process.) That does nothing to help anyone.

Second, even if the courts do find some basis for continuing to issue declarations as to sex without a statutory provision, that means overseas-born people will be stuck with the Family Court—far from self-identifying. The premise of the BDMRR Bill is that the Family Court is antithetical to self-identification. So we would have second-class treatment for overseas-born people.

Third, the silver lining of the existing Family Court process was that it symbolically tried to account for overseas-born people too. It was never particularly effective (arguably outside the UK), but it represented a commitment in the law to be more inclusive. It opens the door to substantive improvement for overseas-born people as long as we maintain broad eligibility. The proposed BDMRR Bill is an opportunity to make exactly those improvements, in the direction set by the current symbolic provision, equally with improvements for New Zealand-born people.

Nobody wants to rely on the Family Court. Self-identification should be available to all, and it should be as effective as possible, at least within New Zealand jurisdiction. So there cannot be a return or reversion to the Family Court for overseas-born people.

Get a driver's licence or passport?

Another common view shared by the Department of Internal Affairs is that an overseas-born person could get a driver's licence or passport so that they may be able to update some useful identity document.

(Take a moment to marvel at the Department's opinion excerpted above. They claim that the BDMRR Bill has no extra-territorial jurisdiction, but the demand is for New Zealand to do something within its jurisdiction to care for overseas-born people. They claim that overseas-born people have to comply with the laws of their country of birth, knowing fully that those laws may persecute those people. They cheekily claim that a citizenship record may be updated, knowing fully that it cannot, but rather a secondary evidentiary certificate would be issued (a process they could adopt for overseas records). They then refer to “preferred gender identity”, which gives us a hint about their view on the nature of the subject more broadly.)

This approach of relying on a driver's licence or passport is fraught for three reasons.

First, the passport is subject to the same racist-transphobic context globally as a birth certificate. Temporary or permanent residents would still carry a passport from their country of origin, which may be hostile to their gender situation. That deprives them of gender self-identification within New Zealand's jurisdiction (where New Zealand law nevertheless supports name changes contrary to their passport).

Second, a requirement to have a driver's licence or passport places arbitrary barriers for overseas-born people. In the case of a driver's licence, why should updating a gender marker require knowledge of the road code? With passports, it means applying for—and gaining—citizenship, something which is out-of-reach for so many migrants such as workers and students disproportionately exploited by this country for labour and education fees, with slim chance of ever finding a pathway to citizenship.

Third, a driver's licence does not actually display a gender marker, although one is recorded in a database and used by the state bureaucracy. That means someone without citizenship (say, a permanent resident), who manages to get a driver's licence, and even updates it, will still be left without an identity document that affirms their correct gender marker and name together.

So it is still sub-standard treatment for overseas-born people to rely on existing identity documents other than their birth or citizenship information, compared to the privilege afforded to New Zealand-born people in the BDMRR Bill.

From options to recommendations?

Having explored a range of options, we can start thinking about what it would take to form a recommendation. But have we thought hard enough?

So there are clearly many options for developing a policy to amend the legislation, potentially touching not just the BDMRR Act, but also the Citizenship Act, and perhaps other laws as well.

A key difference in this approach is accounting for the needs of overseas-born people—especially those of nonwhite community members—when drafting legislation. These needs have not been canvassed thus far; not even, as far as I can tell, by select committee, Crown Law, or the other checks and balances in the legislative process.

The BDMRR Bill has instead been under attack by transphobic, interphobic bad-faith actors. The reaction by activists and allies to that pressure has been to rally around what is, frankly, a fiery dumpster of a draft law, and defend it until its passing. We need to stop this and ask serious, good-faith questions of our own instead.

The BDMRR Bill is far from fit for passage. No second or third reading will fix it. We have to return to the drawing board and actually consult rainbow ethnic minority folks to see what laws need to be drafted to accommodate all our needs to achieve maximum parity between New Zealand-born and overseas-born people while introducing self-identification.

So although we have explored a range of options above, it is impossible for one person to dictate what must become the final recommendation for you to demand from your Member of Parliament. That requires consultation and legal work beyond the scope of a blog post. That work has not been done in relation to tauiwi rainbow ethnic minority communities, and it must be done by the government. These grassroots communities are not well-organised, do not have resources or safety to be highly visible, and lack legal support to draft legislation.

Until that foundational work is done by the government, we find ourselves rallying around a racist, white-supremacist version of a law that could feasibly have been drafted equitably, but for the negligence of our supposed allies in parliament and beyond. Our allies are quick to judge “TERFs”—correctly—for being white supremacists. But what use is that, if our allies then promote legislation that is white-supremacist by omission, in our name?

Conclusion: we live in a colony

In New Zealand, we have a deeply-entrenched view that rainbow issues do not intersect with racial or ethnic diversity. This false assumption manifests in exclusionary laws like the BDMRR Bill. But it also rears its head in other laws like a proposed conversion therapy ban that would rely on the racist-transphobic-homophobic-misogynist-classist nexus of police, courts, prisons, and the immigration system, to punitively surveil and monitor already over-policed racial minorities in the name of protecting LGBT+ rights. Both of these legislative strategies are fundamentally rooted in a settler-colonial Pākehā mindset.

We have to understand that legislation does not sit in a vacuum. Governments led by Labour or National have both, for decades, persisted with xenophobic racism in policy-making. It was a Labour government that undermined jus soli birthright citizenship, in fear of Asian anchor babies nearly twenty years ago. It is a Labour government today that is scapegoating migrant workers for allegedly depressing wages and squeezing the housing market. We are not exempt from this brutal onslaught when a centre-left government is in power. There remains a legal fence even between real citizens and citizens-by-grant. Proposed laws like the BDMRR Bill (and the Prohibition of Conversion Therapy Bill) should be considered in this context: the continuing proscription of full, foreign lives.

We have to do better than that.

The year was 1999. It was a half-decade after the passage of the Violence Against Women Act (VAWA), which deployed more police and introduced more punitive sentencing in an attempt to reduce domestic violence. Many of the feminists who had lobbied for the passage of VAWA remained silent about Williams and countless other women whose 911 calls resulted in more violence. Often white, well-heeled feminists, their legislative accomplishment did little to stem violence against less affluent, more marginalized women like Williams.

This carceral variant of feminism continues to be the predominant form. While its adherents would likely reject the descriptor, carceral feminism describes an approach that sees increased policing, prosecution, and imprisonment as the primary solution to violence against women.

This stance does not acknowledge that police are often purveyors of violence and that prisons are always sites of violence. Carceral feminism ignores the ways in which race, class, gender identity, and immigration status leave certain women more vulnerable to violence and that greater criminalization often places these same women at risk of state violence.

To a large extent, the issue of conversion therapy seems to run in parallel to that of domestic violence that disproportionately targets women. But it is more than an analogy, because there is an overlap: the practice of conversion therapies is inherently violent, and it may be perpetrated by a domestic relation of a victim, which makes some conversion therapy a species of domestic violence. So the critique of carceral feminism that Law uncovers can also extend to our understanding of conversion therapy, state responses to it, and how activists lobby for legislation and enforcement.

Law hones in on the core trade-off in advocating for carceral approaches to domestic violence:

Casting policing and prisons as the solution to domestic violence both justifies increases to police and prison budgets and diverts attention from the cuts to programs that enable survivors to escape, such as shelters, public housing, and welfare. And finally, positioning police and prisons as the principal antidote discourages seeking other responses, including community interventions and long-term organizing.

Fundamentally, “[c]asting policing and prisons as the solution to domestic violence”, is the heart of a conversion therapy ban as envisioned by the only legislation drafted and offered in the New Zealand Parliament — the Prohibition of Conversion Therapy member's bill by Labour's Marja Lubeck MP. This bill remains the basis for the Ministry of Justice while they draft a government bill to be passed by early 2022. The Lubeck bill seeks to make new criminal offences for a range of acts (including procuring conversion therapy as a misguided victim), and indicates criminal fines and imprisonment as the cure, whilst reserving special punishments for migrants (and implying deportation for all offences). It remains to be seen whether the government bill will pursue a non-criminal (yet symbolic and ineffective) gesture, or proceed with a punitive solution like Lubeck's, which they promised in their election manifesto — as if spending time in prison will somehow rehabilitate an offender out of homophobia or transphobia.

While there are many possible criticisms of the Lubeck bill and its general approach, the more interesting news in the budget announcement singled out by the Spinoff opinion piece, relates to the rest of Law's warning: “[it] diverts attention from the cuts to programs that enable survivors [and] discourages seeking other responses”. This is a textbook trade-off for political expediency.

A conversion therapy ban — particularly criminalisation — is a financially cheap policy. At first, it does not require any funding, but nevertheless offers a symbolic victory for a governing party to posture with. Should activists and the community eventually become dissatisfied with the ineffectiveness of such a policy to actually end conversion therapy, then the state may easily “[justify] increases to police and prison budgets” as a promising solution — that is, growing the general policing and prison budgets, not necessarily specific to conversion therapy eradication. It is easy to imagine scandalous news revelations in three or five years, exposing the still ongoing practice of conversion therapies, despite the legislated ban. The ensuing moral outrage could be channelled into harsher punishments, more police and prison funding, and a general escalation in racist deployment of state violence.

The racism inherent to the carceral response to conversion therapy should be understood in two parts. Firstly, the police, courts, prisons, and immigration systems are racist. Secondly, conversion therapy is racialised:

The risk is higher in general for queer people of colour too; the survey found that while 7% of LGBTQIA+ people in the UK have been offered or undergone conversion therapy, respondents from ethnic minority backgrounds were twice as likely to have had these experiences.

A criminal conversion therapy ban, then, invites further police surveillance and enforcement in already over-policed communities. Law notes the unintended consequences for those at the intersection of various identities, with the application of state violence in the name of protecting them from domestic violence:

Women marginalized by their identities, such as queers, immigrants, women of color, trans women, or even women who are perceived as loud or aggressive, often do not fit preconceived notions of abuse victims and are thus arrested.

We can reasonably expect just these unintended consequences with another cookie-cutter piece of criminal legislation, in the name of banning conversion therapy for the benefit of queer and trans people of colour. Increasing the interactions between police (who, say, routinely took photos of brown youth in public without consent) and, say, LGBT+ brown youth facing conversion therapy, seems unlikely to benefit the victims.

The threat of police, court, prison and immigration involvement has long been a deterrent for victims of abuse to report to the system — especially in cases of domestic violence and sexual abuse in circumstances of precarity, poverty or financial hardship or dependency. There is no reason to expect that behaviour will be different in cases of conversion therapy.

Meanwhile, solutions that might actually help, such as, “community interventions and long-term organizing”, can be easily neglected. The Labour government has said it intends to pass the criminalisation of conversion therapy into law effectively by Big Gay Out 2022 — a policy obviously crafted for media impact more than substantive community reform. So long as this ineffective, inequitable, carceral policy-making will be celebrated by influential activists, and will remain welcomed and celebrated by Pride and related events, the governing party will have a free pass to undercut our communities' funding in meaningful ways.

The Spinoff opinion piece deftly dodges accountability for this trade-off, and somehow manages to represent rainbow communities in 2021 as if racism within and towards intersecting, over-policed ethnic groups of the rainbow were not even worth mentioning. (To reinforce the point: it also names “self-identification on birth certificates” as an issue that “activists” have prioritised, but the legislation for that matter seeks to deny overseas-born people, even if they are New Zealand citizens, from access to updated birth certificate information — another issue where “activists” have remained silent on the intersection of race and the rainbow.)

So long as we continue to ignore the fault lines of racism within the rainbow, and its firm roots in settler-colonialism in New Zealand, we will continue to find that Pākehā-dominated activism holds us back, entrenching state violence, carceral politics, and all of its unintended consequences.

What solidarity do Trans people want from allies, how can communities enable more self determination by Trans people?

— Sina Brown-Davis (@uriohau) March 29, 2021

This is impossible for an individual to answer. There will be wide-ranging perspectives within the distinctly non-monolithic set of all trans people.

So I can only answer for myself. Here are my responses, which may be a little different to the usual, prevailing narratives.

Understanding differences

First, I want cis people (and, frankly, some trans people privileged by race or wealth or non-disability) to recognize the trans population's own diversity. Trans experiences are individually unique, but fall within a distribution that is notably racialized and divided by class and ability.

The experience of an immigrant brown trans person is going to be significantly different from a Pākehā middle-class trans person, most of the time. The experience of a Disabled trans person will be significantly different from a non-Disabled trans person, most of the time. The experience of a Māori trans person will be significantly different still.

The consequence of differences

Second, when we have recognized this diversity, we must be mindful of the different consequences that systems and policies will produce for different subgroups. There will be people more vulnerable to systemic oppression and abuse than others. Any first draft of a policy is likely to risk unintended consequences—such as racialized harms—even if it is otherwise deemed a progressive policy in the interest of trans rights.

Knowing how the balance of power within the trans communities tilts towards the more-Pākehā, more-wealthy, more-abled, means we must exercise critical caution when considering policies and laws proposed for our benefit. Trans rights for the benefit of cis people is not the same as trans rights for the benefit of trans people. But this is also true for other cross-cutting categories like race, class, disability, and so on.

For individual allies going about their lives—perhaps on social media—this disparity means an obligation to hold an ongoing conversation with diverse sets of voices among trans people. It is too easy to accept the popular conception that all trans people are white, and all nonwhite people are cis. Listening to different voices is essential to break that presumption of monotony.

For power-holders representing systems and enacting policies, it is vital that appropriate consultation is held with a range of vulnerable people among the trans population. Nothing about us without us. Individuals can support this by holding their political representatives to account by asking: are you consulting widely enough?

Third, media representations of our diverse stories are often missing. Instead, unrepresentative tropes, stereotypes and narratives emerge, sometimes even sincerely offered as if it is helpful. One pernicious trope is the “born this way” or “born in the wrong body” story. That may be true for some, but not all, trans people. This is often understood in opposition to fluidity and natural change (almost in fear of directed change, i.e. conversion therapy), as if people do not evolve in their self-understanding, do not develop new feelings (such as at puberty), or do not come out later in life. It produces systemic policies that, for example, only acknowledge a single change in name or gender, from and to fixed, approved gender descriptors, and that demand definite and certain and enduring gender descriptors for the colonial state to categorize and surveil people.

It is for allies in media to work on adapting this story-telling to represent a wider range of trans people. There are already media institutions for some ethnic groups (e.g. Māori TV) which do some of this work but could do more. There are still others (e.g. Apna TV) which remain outright homophobic and transphobic. Pākehā media continues to platform reactionary perspectives and monocultural narratives routinely. Unaffiliated individual allies may take it upon themselves to hold their media to account, and avoid uncritically amplifying stories just because they appear to be superficially trans-friendly. Allies could, for example, begin by critiquing their venerated national-treasure media figures like RNZ's Kim Hill, who for years has platformed bigots and transphobes, and adopted hostile lines of questioning targeting trans people.

Acting individually differently

Fourth, strategic inaction is as important as action. Do not support a petition when you have not ascertained its tradeoffs, benefits and costs—even loosely or casually. Do you know who is going to be left behind by a proposed bill in parliament? Do you know who will bear the brunt of unintended consequences, and are you comfortable with that sacrifice? If you cannot answer such questions, then hold off from supporting laws and petitions. Instead, learn more, by continuing that ongoing conversation with diverse voices in the trans communities, until you can be satisfied our varying needs will be met.

Another kind of inaction pertains to the rising, hostile engagement by allies against so-called “TERFs” (or, more generally, proactive transphobes). A strategy of escalation does not benefit trans people generally, because it provokes backlash and hardening of positions. As with any conflict resolution process, we can accept that reconciliation may be impossible, and that is hurtful to realize because the division around transphobia within LGBT+ communities is an open wound. However, we can still pursue de-escalation that seeks to reduce the temperature and avoid further reactionary harms that trans people would face. Tough-guy rhetoric from cis people is unlikely to blow back on cis people, whereas some poor trans person could be victimized by a transphobe down the line.

Different systemic solutions

An alternative to escalation would look to support and protect trans people in healthcare, education—especially community education to reform colonial norms and values—and so many other interventions across government and society. Much of this should be based on partnerships within the diverse communities represented in the trans population—racialized-religious communities included.

While an escalation approach to solving real problems like conversion therapy, such as with a criminal ban, remains inappropriate, we must still support solutions that will end these harmful practices in more effective and equitable ways.

A proposal

Written in the context of finding alternatives to a criminal conversion therapy ban, I have drafted a proposal of 20+ policies and interventions for LGBT+ benefit with racial equity that government can start acting on immediately. For all the urgency of the petition to ban conversion therapy with the weight of the justice system, we know that drafting a (nuanced, responsible, sensitive) law will reasonably take a long time. But there is so much more that the government could do overnight—”urgently”, “immediately”, “now”.

These reforms and programmes in my draft proposal are prioritized by their value for shifting certain norms and behaviours away from conversion therapy, mainly by prevention and diversion. But, in principle, they are really about lifting up the most vulnerable among the trans population (non-wealthy, Disabled, ethnic minority rainbow people). Rather than one singular policy outcome, that broad approach is likely to have many benefits for rainbow intersectional equity.

Beyond government, we can hold political parties and other organizations to account. When they promote their allegedly rainbow-friendly policies, we can ask whether they consulted a reasonable representation of trans people. Or did they mainly turn to Pākehā, possibly middle-class trans folks (if any)? Individual members of these organisations—Pride itself, or a political party, or another organization—can advance accountability in those structures by paying attention and vocally questioning whether justice is being done.

The above is the beginning of an answer to the questions posed. There is more for me to learn and there is more to be said. It is my contribution to what should be a broader conversation representing a wide variety of perspectives, experiences and identities from trans, non-binary, and gender-decolonial communities.

It was alarming to learn how deceptively the Office sought to approach our rainbow ethnic folks. While they seemed to offer an olive branch and asked to build relationships and bridges for future development, they failed to acknowledge the history of harm (ongoing) towards rainbow ethnic people that they have been complicit in.

And it got worse.

There was no political representation at the meeting. The Minister of Ethnic Communities, Hon Priyanca Radhakrishnan, did not deem it worthwhile to attend the first ever hui with rainbow ethnic members. The consultation was instead facilitated by an intern, with a regional manager in attendance, along with another staffer. When asked whether the Minister was even interested in the event, the officers refused to answer: “we can't say”. Was the Minister even aware this event was happening? “We can't say”.

The main offer to the rainbow ethnic communities from the Office was access to the Ethnic Communities Development Fund (ECDF), a $4.2 million fund providing grants and support to ethnic communities.

According to the staffers, they were disappointed to learn that no rainbow ethnic folks had taken advantage of this fund, but they acknowledged this may be because there was historically no connection between the Office and this sector. So they were now here to build that missing bridge, and all would be well, once a few rainbow ethnic folks were empowered to start some projects.

But has there really been no connection between us and the Office?

There has been a connection: the Office has been funding harm towards us.

They have done this by continuing to fund bigots — homophobes and transphobes — in our communities, without questioning that bigotry, or enforcing standards through their grants criteria. When giving out money, they do not vet whether a group purporting to represent a whole ethnic community is also inclusive of its LGBT+ members.

Have no rainbow ethnic folks ever applied for funding? That is also a myth.

Every grant given to a group purporting to represent a whole ethnic community (or wider) is a grant that ought to include the group's LGBT+ members. When an association of Indians seeks funding for a “diversity centre”, but that centre excludes gender and sexual diversity, then the system has failed. The Office has provided money which is supposed to benefit rainbow members too, but the delivery and execution has not followed through.

That failure is not the fault of rainbow folks who merely did not step forward to apply for a separate grant. The original failure is that the Office supported discriminatory applicants who do not align with the principles of the Bill of Rights Act or the Human Rights Act. The secondary failure is that the Office did not vet and verify the problem, and does not have a policy to be concerned about these widespread breaches.

Many ethnic minority tauiwi communities have a familial or collective value system. We may not go to the Office of Ethnic Communities primarily identifying as “rainbow” or “LGBT+” members. We may seek their support through every dollar that is spent towards this or that particular ethnic community we belong to, and may prefer to primarily identify with that ethnicity. In my case, it may be as an Indian that I want the Office to ensure that LGBT+ Indians are protected through all their funding.

So before the Office seeks to build new bridges with rainbow ethnic folks, as if there was never any troubling history between us, they should acknowledge their track record of supporting ongoing harm towards us. One staffer even described their position as tabula rasa — a clean slate — as if that means green fields of opportunity lie before us. But there is not a clean slate. It is bloodied.

Before the Office sends its interns to consult with us, let us see the Minister express her interest. Let the Minister visit us in the next session. Let the Minister have a chance to express an apology for their history and ongoing propagation of harm through support of homophobic, transphobic leaders and groups in ethnic communities.

Let the Minister, an ardent feminist, even take a moment to address her friendly airtime pre-election interview with an Indian ethnic media figure who went on to abuse LGBT+ people in public without consequence, after previously abusing Muslims and women.

here's new Minister for Diversity, Inclusion and Ethnic Communities, also Minister for Youth, @priyancanzlp chilling with our bigoted uncle Roy Kaunds before the election. pic.twitter.com/ypD14oo3BQ

— radhika reddy (@radhikalism) November 3, 2020

When the Minister is done with the preliminaries, let us consider what her Ministry and the Office can do to engage on Government legislation that threatens to leave behind rainbow ethnic communities, like the Births, Deaths, Marriages and Relationships Register (BDMRR) Amendment Bill. The proposed law not only fails to offer any relief for overseas-born people (including New Zealand citizens) who seek to amend their birth certificates, but it also apparently removes an option to seek a court declaration to support a birth certificate amendment that was previously available to all eligible persons including overseas-born citizens and permanent residents. The law as proposed is the product of a Pākehā-centric movement, which has failed to consider the needs of especially overseas-born people (disproportionately affecting people of colour whose countries of origin could be more hostile, as it often is for refugees). This is exactly where the Office of Ethnic Communities and its Minister is supposed to be a voice in Government.

The Minister could also explain what policy advice she and the Office can offer for any law tackling the problem of conversion therapies (which is a kind of torture). A simplistic, blanket ban, as is currently proposed by a Member's bill, could disproportionately criminalize nonwhite communities, while relying on a regime of (racist) policing and incarceration to enforce the new law. What consultative advice can the Office provide legislators on developing a programme to end conversion therapies (which are racialized and varied between ethnic-religious communities), and not just ban it (so as to wash one's hands of the issue)? What would a funded set of programmes of outreach, culturally-sensitive community reforms, education, counselling, wrap-around support services, and so on, look like when backed by meaningful legislation? How can a legislative package be formulated to avoid the consequences of rainbow ethnic members facing the criminalization of, and separation from, their isolated families, or facing undetected overseas conversion therapies, or facing greater risks and threats (like retribution) in conversion therapies driven further underground? In other words, what would a law designed to actually eradicate conversion therapy look like, instead of a law designed to soothe the liberal, cisgender, straight politician's conscience and enhance our 100% Pure international image?

This is the direction that the Office of Ethnic Communities needs to head towards if it really means to build bridges with rainbow ethnic people. First, it must apply non-discrimination requirements to its grants, so that no gender or sexual minority in any ethnic community is harmed by its funding. Second, it must acknowledge the history of harm that has been caused, and the Minister — not an intern — should publicly front up and commit to a change of course, including by fighting for us in ethnic media and spaces where bigotry goes unchallenged. Third, an intentional, scheduled policy review and development programme should begin, with close community consultation, and a high priority placed on rainbow policies proposed by the Government, so it does not harm (intentionally or inadvertently) rainbow ethnic folks.

What need not continue is the duplicity of funding homophobes and transphobes in our ethnic communities, while also offering breadcrumbs of acknowledgement too-little-too-late by sending an intern to thrust us into grant-application workshops (as if we were delinquent all along). The real problem is homophobia and transphobia and misogyny and sexism and bigotry, and it is located among even our ethnic communities' cisgender and straight population, leadership, and media. To help rainbow ethnic communities, it is vital that the Office or any other body should address the problem at its root, starting with its funding.

It is not uncommon for such inaccessible media to appear on the web, but it is interesting that this particular video is published by a government body — an arm of the Ministry of Health, which one might expect would support Disabled people better.

So how bad is it? Why did this happen?

And what did they do after being informed? Why didn't that make things better?

Timeline

Let's establish the sequence of events, at least as I saw it:

• 2020 Dec 31 23:55 NZDT
  Video posted on Twitter by @covid19nz.
• 2021 Jan 1 20:30 NZDT
  I saw the video for the first time.
• 2021 Jan 1 20:36
  I posted a thread in response, on my timeline, tagging @covid19nz, highlighting accessibility problems.
  • Note: I avoided engaging directly with the original tweet so that I would not spread it into more people's view through reply activity.
• 2021 Jan 1 21:59
  I caved in and replied directly to the tweet (risking adding to its spread on Twitter).
• 2021 Jan 1 22:04
  @covid19nz posted a reply to their own tweet appending a warning.
  Then @covid19nz replied to me saying that a warning was added and captions would follow later.
• 2021 Jan 1 22:05
  I looked for the warning and could not find it (I expected it to accompany the video, appearing before it, but there was nothing).
• 2021 Jan 1 22:06
  I replied asking where I could find the warning. I got no response.
• 2021 Jan 1 22:10
  I looked up @covid19nz's profile and found their separate reply including the warning.
  • The warning looked defective: it appeared after the hazard, it used language against recommendations, and it contradicted itself (saying the video was, “not for social media”).
• 2021 Jan 1 22:17
  I replied in multiple posts objecting to the warning and its defects, as well as on my own timeline with additional detail as to why.
• As of this blog posting, I received no response and the video remains posted with the defective warning.

What's the big deal?

The timeline above asserts a few things that should be elaborated. What was the problem in the first place and why is it serious? Why was the warning reply defective? What should @covid19nz have done, and what should they do now?

Hazard

The major problem, to recap, is that the video could be hazardous. It presents images that flash, strobe or move, in ways that could induce a seizure or migraine or similar reaction in some people. Films and video games often have these problems, and in various jurisdictions, they may be required to present a warning before the hazardous content to allow affected people to opt out of viewing it. Here, no warning was given.

Surprise

The hazard is made worse by the fact that the video is posted by a trusted public source, @covid19nz, an informational government account that usually posts key public alerts and warnings about COVID-19. The risk posed by the COVID-19 pandemic is of special concern to Disabled people, so they are likely to follow the account for meaningful information. There is no expectation that @covid19nz will publish hazardous material on such a channel, so the video is likely to take people by surprise. A prior warning, therefore, is of utmost importance.

The video itself is designed to be misleading: it starts off like a regular video with Ashley Bloomfield addressing the audience with his usual greeting. It then transitions into an unusual music video sequence, in an intentionally surprising way. This bait-and-switch trick is almost malicious, let alone negligent, given how hazardous the content can be.

Without any prior warning available, a viewer has to watch the video to discover whether it is unsafe, or important, or not. It inherently exposes them to risk before they can determine it is risky. A prior warning would allow a chance to opt out of watching the video. Alternative content (such as a text post) would give those who have opted-out a way to receive the same content and judge whether it is important to them.

Generally inaccessible

There are even more problems with accessibility because the video does not include captions, a transcript, or alternative content, for Blind or Deaf users. The COVID-19 press briefings were well-known for the sign language interpreters typically present. However, that minimal standard of accessibility does not seem to extend to social media or even the COVID-19 tracer app. The hazardous video posted now is part of this odious trend.

The law

There are legal and policy requirements for government digital content to be accessible. As a State Party, @covid19nz is obliged to publish material with reasonable accommodations for equal access to information. The hazardous video, also lacking captions, transcripts or alternative content, does not meet the legal or policy standard for a variety of disabilities.

Defective response

The response by @covid19nz was to post a reply to their own original post, to include a warning after the fact. This is useless. Why? Because — and this may seem obvious when I say it — a warning should come before a hazard.

This kind of after-the-fact warning is particularly defective on Twitter, because the video is generally visible without replies being shown. That is, if any user retweets, likes or replies to the original post, only that original post and the user's interaction are shared to their followers. Other replies in a thread are not shown. So the warning becomes detached from the hazardous content.

Pinning the tweet

It is especially egregious in the case of the @covid19nz Twitter profile page, where they have chosen to pin the hazardous tweet. That means visitors to the @covid19nz page will be exposed to the video even if they do not follow the account. And the video will be visible without the warning in the replies, because the reply does not get pinned.

A lack of understanding and standards

Incidentally, another hint is their wording, “… suffer from migraines and headaches”. The phrase, suffer from, is one that digital.govt.nz advises against in their very clear guidance on disability language. It is evident that the social media operators behind @covid19nz have not been through any training on digital accessibility or disability inclusion.

The final clue is the self-contradictory excuse that @covid19nz posted in their warning: that the video was “not for social media”. If that is the case, then why does it appear on social media? Regardless of the intent of the video, the impact is that it will appear via social media on the screens in front of affected users, because — and this must also seem obvious — @covid19nz posted it on social media.

If it is not accessible enough for social media, why are there no standards in the COVID-19 group or the Ministry of Health to stop it being posted?

Let me repeat that these failures are occurring in a body within the Ministry of Health — a ministry that, as a primary concern, nominally caters for people with disabilities and chronic illnesses.

The legal and policy obligations demand that the government, including the Ministry and COVID-19 group, should promote accessibility also to urge private entities and mass media to adopt better accessibility practices. @covid19nz is required to be an exemplary leader in publishing accessible content. It is not doing so.

So where to from here?

Solutions

The immediate problem is that a potentially hazardous video is visible without a prior warning. The original post must be deleted.

The bare minimum: re-post with a text warning

At a minimum, a re-post may be acceptable if it includes at least a text warning in the content of the tweet. That may be suitable because most seasoned Twitter users who need to avoid hazardous flashing or strobe or motion in videos may have switched off autoplay.

The responsible choice: re-post with a warning in the video

But a text warning is not enough for the high standard required of @covid19nz as a State Party which must be exemplary in its promotion of digital accessibility. So @covid19nz should also edit the video to include a leading title screen with a warning, allowing enough time for users to pause the video before the flashing content starts.

Given that the video is designed to be surprising, with Ashley Bloomfield starting off speaking normally, then adding a warning screen at the start could be a spoiler. So be it.

The video was clearly produced with a substantial budget, so it is reasonable to expect some of that budget to ensure accessibility, such as producing a warning title screen.

One benefit of adding a title screen with a warning to the video itself is that it will work even in cases of video autoplay. Not everyone who will have an adverse reaction to this kind of moving image will already know their condition or have a diagnosis or a history of reactions. So it is useful to inform users before they consent to the risk.

Another benefit of a title screen with a warning is that it would be portable across social media platforms and channels, such as Instagram (where @covid19nz has also posted the video). A text warning in a tweet only covers the tweet, but a title screen at the start of the video is likely to be usable everywhere.

It's not too late

The @covid19nz social media response to this ongoing accessibility problem has been reluctant and ineffective. It took about twenty hours before I, a member of the general public, noticed the post and reported the problem. It looks like it will take longer for @covid19nz to abandon their post's social media high-score to re-post it. In the meanwhile, the hazard is visible to users without a proper warning. This is unacceptable.

But does it mean it is too late to do anything? The second-best time to do the right thing is now. Remedying the problem in the proper way would set an example for future publications by @covid19nz, but also the digital sector as a whole, which State Parties are obliged to lead on.

The future

For next time, it would seem there is a serious gap in the way the COVID-19 group approaches accessibility, especially in social media. The digital.govt.nz guidance and standards does not seem to have penetrated the minds of the Ministry of Health and the COVID-19 group. Perhaps training in this area is in order.

Whatever internal standards and policies the COVID-19 group has for its social media publications seems to be deficient. Perhaps an overhaul of these rules is in order.

Meanwhile, it appears that there will a next time, because @covid19nz will be producing more videos:

Let's hope they can pivot their accessibility strategy in time.

Conclusion

The NZ COVID-19 group related to the Ministry of Health has shown time and again that it views accessibility and disability as a second-class concern. This occasion of the hazardous video being posted without a suitable warning is yet another example. It is important to reverse the trend by rectifying the COVID-19 group's disableist approach wherever possible. Fixing the warnings on this video is as good a place as any to start, in anticipation of the year to come.