The NZ Law Commission is examining whether the current wording of the Human Rights Act (1993) adequately protects people who are transgender (including non-binary), and people with innate variations of sex characteristics (including intersex people), and if not, what amendments should be made.
This project is called “Ia Tangata | A Review of the Protections in the Human Rights Act 1993 for people who are transgender, people who are non-binary and people with innate variations of sex characteristics.”
What the Human Rights Act covers
The Human Rights Act is an anti-discrimination law. It seeks to ensure that people in Aotearoa New Zealand are not unfairly subjected to different treatment – for example, when accessing education, employment, housing, goods and services, and public facilities. As well as setting anti-discrimination standards, the Human Rights Act explains how these standards will be monitored and enforced.
Key to the Human Rights Act is section 21, which lists “prohibited grounds of discrimination” (things like sex, religious belief, colour, race, disability and sexual orientation). The Human Rights Act sets out the circumstances in which it is unlawful to treat someone differently and worse than others based on one of those prohibited grounds.
It is not always unlawful to treat someone differently and worse than others based on a prohibited ground. For example:
- The Human Rights Act does not cover the way people behave in truly private contexts. The Act generally only applies to private people and organisations when they engage in certain public-facing activities (such as being an employer or landlord).
- The Human Rights Act distinguishes between differences in treatment that are justified and differences in treatment that are unjustified through a range of methods. This allows for competing rights and interests to be weighed.
For those who want to learn more about how the Human Rights Act operates, we have prepared a Beginners’ Guide.
– Law Commission, 2023
Te Kāhui Tika Tangata | Human Rights Commission also has information available on its website (tikatangata.org.nz).
You can download the Law Commission Beginners’ Guide to the Human Rights Act (HRA) by clicking the button below.
Amending the Human Rights Act
The HRA is broadly considered to include, within the meaning of ‘sex’: transgender people (including non-binary people), and people with innate variations of sex characteristics (including intersex people). However, currently the HRA does not explicitly include any of the above groups. The absence of explicit inclusion may leave room for narrow or discriminatory interpretations.
Discrimination on these bases may already be prohibited by one or more of the current grounds listed in section 21 of the Human Rights Act although this has not yet been considered by a New Zealand court or tribunal. For example, the Government considers that the existing ground of “sex” covers discrimination against people who are transgender, non-binary and/or have innate variations of sex characteristics (although it considers the law could be clearer).
– Law Commission, 2023.
Note that while it “has not yet been considered by a New Zealand court or tribunal”, there was a precedent setting ruling by the Employment Relations Authority in 2016, which accepted that an employer who constructively dismissed a transgender woman for transitioning did so unlawfully.
Find out more and make a submission
There will be an opportunity for the public to submit their views in 2024. It will be important for the Law Commission to hear from transgender people (including non-binary people), people with innate variations of sex characteristics (including intersex people), and our supporters. We will publish more information, things to consider, and our submission during 2023-2024. You can follow our blog in the main menu for updates from us. You can also find out more and subscribe to updates from the Law Commission by clicking the button below.
