The government has proposed changes to the Human Rights Act, aiming to protect groups from speech that incites hatred, and improve protections against discrimination.
They have invited submissions on this, which close August 6th 2021.
Unfortunately, as they chose to put these changes forward at the same time as the BDMRR Bill, and the Conversion Therapy Bill, we have had limited time on work on this. However, we’re publishing our submission here, and encourage you to submit on this if you haven’t already done so.
Click the “Proposed Changes” button to read the 6 changes they have proposed, and find out how to make a submission.
Gender Minorities Aotearoa is a nationwide transgender organisation in Aotearoa New Zealand. It is run by and for transgender people; including binary and non-binary, intersex, and irawhiti takatāpui. We operate within a kaupapa Māori public health framework and The Ottawa Charter (1986), with the aim to facilitate health and well-being for transgender populations, as defined by The World Health Organisation – complete physical, mental, emotional, spiritual, and social well-being.
We support the intent of the proposed changes.
We wish to comment on proposals 2, 5, and 6.
Proposal 2: Many who incite hatred do so behind a mask of respectability. We are concerned that the wording in proposal two, which replaces the current standard in the existing sections on racial disharmony, incitement, and racial harassment, of ‘hostility’, ‘ill-will’, ‘contempt’, and ‘ridicule,’ may significantly weaken the bill. We are worried that the replacement of these specific terms with a general standard of ‘hatred’ will place more of the burden of proof on the victims of incitement, hatred and harassment. We recommend maintaining prohibitions against inciting hostility, ill-will, contempt and ridicule, to ensure that groups who intend to incite these against protected groups would be accountable under this legal change.
Proposal 5: We strongly support making “incitement to discriminate” against the law.
When wording this legislation, it must be considered that there is a great difference between – for example – encouraging a service discriminate against transgender people, and in contrast encouraging a venue not to host an anti-trans group which calls itself a womens group. It is important that transgender youth in particular are not criminalised for defending themselves against transphobic campaigns in this way. We want to make sure that the legislation cannot be misapplied in this way.
Proposal 6: We agree that the law should be more clear that the protected aspects of sex include gender identity, gender expression, sex characteristics, and intersex status.
In natural language, sex and gender are often understood interchangably, and we believe it is important that any law change reflects the intent to protect all of these aspects of sex equally.
Currently there are legal exceptions to provisions against sex based discrimination, where discrimination is legal under certain circumstances. We are concerned that trans people and intersex people will be included in these exceptions by default, and don’t want to see anti-transgender and anti-intersex discrimination enshrined in law.
This is especially important given that transgender people twice as likely to be forced to have sex against their will, (32% of trans people vs. 11% of women in the general population) and currently face discrimination in access to “counselling services around sexual matters or the prevention of violence,” with only 2% of these trans people being able to access a “rape or sexual abuse service” at the time of their abuse. Access to “counselling services around sexual matters or the prevention of violence” is currently one of the exceptions to the HRA’s application where discrimination on the basis of sex is currently allowed. (Counting Ourselves, p. 78, https://countingourselves.nz/wp-content/uploads/2020/01/Counting-Ourselves_Report-Dec-19-Online.pdf)
While we do not have similar statistics for the intersex population in this country, due to a lack of appropriate research, we know that there are similar issues to access to these kinds of services for intersex people, if not worse.
It is also important to note that currently under the HRA, discrimination on the basis of sex is currently allowed across a very wide range of areas, including examples such as “the provision of separate facilities for each sex on the ground of public decency,” where the old-fashioned language “each sex” de facto precludes the consideration of gender identities outside of the binary, and the consideration of bodies with diverse sex characteristics, including intersex people.
One option to avoid this is to take sex out of the many exceptions it is currently included in, another is to specify in the general qualification on exceptions that exceptions on the basis of sex do not allow for exclusion based on transgender or intersex status, and a third is to enshrine transgender and intersex non-discrimination in a separate category other than sex; so that it would not be included by default in the exceptions to legal protection.
We believe that there is some urgency in updating the law to protect vulnerable populations.