Do people who are transgender or non-binary, or who have innate variations of sex characteristics, need more legal protection against discrimination? Yes, says the Law Commission, at least as a preliminary view. You'll find this view in Ia Tangata, an issues paper reviewing the Human Rights Act 1993 (HRA). We made a submission on the paper because questions about gender identity and gender expression come up in the course of our work. For example, we published a guideline on the legal framework for social transition of gender for New Zealand schools because of the questions we received from school leaders, teachers, and parents.
Our submission starts from the strong belief that every person has inherent dignity and worth. We condemn any instances of unfair and demeaning treatment whenever they occur, including those experienced by people whose expressed identity is transgender or non-binary and those inappropriate surgical interventions experienced by people born with innate variations of sex characteristics.
However, we had a number of concerns with the Commission's preliminary view. In summary, we submitted that:
1. Piecemeal changes to the HRA are likely to go wrong: The HRA is a relatively blunt instrument and it is difficult to identify the “consequential implications” of law change. This is especially so where, as the Commission notes, it has not been asked to conduct a general review of the HRA, and where science, medicine, policy, and law are highly contested and evolving and where they cover a wide range of life stages and issues. It is also difficult to identify every exception that might be required.
2. The Issues Paper hasn’t demonstrated a compelling need for the Commission’s proposed change: There are problems with the Issues Paper’s discussion of the evidence base, which also lacks reference to a wider and highly relevant literature, and there are other laws already in existence that can respond to the issues identified. Law reform should respond to a clearly identified problem that demonstrates the proposed change is necessary, and there should be good reason to think the proposed change will be effective.
3. The proposed amendments lack a solid foundation: Terms like “transgender”, “non-binary”, “gender identity” and “gender expression” are used in shifting and unstable ways. They do not describe objective categories and it would be wrong for the HRA to settle on what may well turn out to be transitory terms and narrow or contingent viewpoints and give them the force of law. It is also difficult to see how subjective terms or experiences like “gender identity” can be a solid foundation for law or legal consequences. The Issues Paper also depends on anthropological assumptions that should be clearly identified and openly debated.
4. Any new “prohibited grounds of discrimination” or additions to existing grounds must be carefully focused: It is almost inevitable that the Commission’s proposed change would impact on the sincere and respectful exercise of conscience and the expression of legitimate beliefs. The rights to hold, express, and manifest these beliefs are fundamental freedoms, and New Zealanders must be protected from discrimination on the basis of these beliefs. Both as a matter of principle and of law, any reform proposed by the Commission should be consistent with these rights and any limits imposed on them should be reasonable and justified. We submit that these requirements are not met in the Issues Paper. If new prohibited grounds of discrimination or additions to existing grounds are recommended, they must be tightly defined to minimise any impacts on freedom of conscience, religion, and belief, and to avoid causing moral injury.
5. Comprehensive exceptions are needed if any new prohibited grounds of discrimination or additions to existing grounds are introduced: The exceptions in Part 2 should provide robust protections for freedom of conscience, religion, and belief. We discuss exceptions that would be required in relation to education, organised religion, health practitioners, and “misgendering” and “deadnaming.”
We discuss each of these concerns in detail in our submission, which you can find using the button below.
We're grateful to the Law Commission for the opportunity to contribute to this important review, and we look forward to seeing the development of their work.
