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. Te Kāhui Tika Tangata | Human Rights Commission also has information available on its website (tikatangata.org.nz).
– Law Commission, 2023
You can download the Law Commission Beginners’ Guide to the Human Rights Act (HRA) by clicking the button below.
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.
Takatāpui, transgender, other rainbow young people are more likely to be involved with Oranga Tamariki, and spend time in the state care system, than the general population.
Over the past 2 years, we’ve worked with a number of rainbow organisations and advocates as part of a Community Design Team, facilitated by Point and Associates on behalf of Oranga Tamariki. We carried out research to discover what takatāpui and rainbow young people want Oranga Tamariki to know about their experiences of living in state care, and how they want the system to change.
The report, Making Ourselves Visible, launches 14 June 2023, and will be available on our website once it is launched.
Join the launch webinar
The launch webinar will be held 14 June 2023, from 12 noon to 1pm. You can register here.
The webinar will be led by care-experienced rainbow rangatahi and will include a panel discussion with members of the Community Design Team.
A research report from The Disinformation Project has documented the merging of disinformation communities in Aotearoa, and shift from Covid 19 to transgender hate.
The report, ‘Transgressive transitions’, documents the merging of conspiracy theorist communities which produce disinformation in Aotearoa. The ‘disinformation communities’ include anti-vaxx, Covid 19 denialist, white supremacist, fundamentalist faith based, and anti-trans communities.
It found that the disinformation community which formed around Covid 19 recently shifted it’s focus to the transgender community. This shift happened in ‘near real time’ as a visit occurred from UK anti-trans campaigner Posie Parker (Kelly-Jay Keen-Minshull). Parker is also known for her links with white supremacy and neo-nazis. Parker visited Aotearoa in March 2023.
The report defines ‘disinformation’ as :
“false information created with the intention of harming a person, group, or organisation, or even a company”
Transgressive transitions
The report documented an unprecedented increase in extremist, far-right disinformation online in Aotearoa, as the disinformation communities merged and refocused on transgender hate.
The report notes several important concepts, which trans communities have attempted to highlight over the past few decades:
The Lemkin Institute for Genocide Prevention has described the international ‘gender critical movement’ as genocidal: “the gender critical movement simultaneously denies that transgender identity is real and seeks to eradicate it completely from society.”
Transgressive transitions
The reports goes on to say:
We note specifically the continued and targeted use of the language of genocidality […]
Through the repeated use of dehumanising language … we are studying the strategic shift of social perceptions, values, and attitudes, which is a dangerous speech hallmark. The violative language engenders and normalises the notion that targets must be killed, and often, urgently.
Transgressive transitions
This is what we’ve been telling the government for years, if you want to counter terrorism, this is the direction you need to look in.
In 2022, ARC conducted a survey of transgender and intersex individuals and their experiences of seeking help as a victim/survivor of sexual violence and/or family violence.
There were four parts to the survey – a transgender community survey (carried out by Gender Minorities Aotearoa), an intersex community survey (carried out by Intersex Aotearoa), a survey of agencies and organisations whose main focus is sexual violence or family violence, and a survey of other services.
This report is our findings on the quantitative data for the transgender community survey, including respondents who selected both transgender and intersex.
