Make a submission to support trans, non-binary and intersex human rights

Te Aka Matua o te Ture | The Law Commission are currently taking submissions on proposed changes to the Human Rights Act that would make protection from discrimination more explicit for trans, non-binary, and intersex people in Aotearoa.

The Rainbow Support Collective welcomes this opportunity to feed back on a critical piece of work. People who are transgender, non-binary, or have innate variations of sex characteristics in Aotearoa experience discrimination, and often don’t feel that the current Human Rights Act gives them adequate protection from discrimination.

Currently, our communities are assumed to be protected from discrimination under the grounds of “sex”, but this is based on a Crown Law opinion - it isn’t explicit in legislation.

The Human Rights Commission have said they receive fewer reports of discrimination from our communities than they might expect. This might be because our communities aren’t sure that they’re protected from discrimination legally.

How to submit

You can read about the proposed changes to the Human Rights Act and access the submission form at the Law Commission’s website.

This is a really long submission form! Don’t feel like you have to answer every question. The Law Commission have said they’re interested in hearing people’s genuine views and thoughts about these changes, so even a sentence or two in your own words is so worthwhile.

Question 80 asks for anything you would like to share - so you can put all your thoughts here!

The Issues Paper is very long, but the Law Commission isn’t expecting you to have read it. There is a shorter summary document you might be interested in - but don’t feel like you have to read that, either. What’s most important is that you’re able to share your thoughts with them.

Here are some key tips and thoughts from the Rainbow Support Collective that you might like to think about in your submission:

• Do you think the Human Rights Act needs to be updated?

• How should the Act define us and our communities?

• When should exceptions apply?

• How should the law define sex?

Should the Act be updated?

This one is easy - we reckon yes!

It’s vital that our human rights legislation clearly and explicitly protects trans, non-binary, and intersex people from discrimination.

(This is question 6 in the consultation document)

How should we be defined?

There are a few options the Law Commission proposes - feel free to share your own whakaaro!

We’re suggesting either of the two symmetrical options:

We think this could look like either:

• adding three new grounds of “gender identity”, “gender expression”, and “innate variation of sex characteristics”, or

• modifying the ground of “sex” to “sex or gender, including pregnancy and childbirth, gender identity, gender expression, and sex characteristics including innate variation of sex characteristics.”

We feel strongly that a symmetrical option is best. These options would give the most coverage and protection for our communities, and provide the most flexibility for future language and identity development.

Both asymmetrical options require enshrining definitions or descriptions of trans and non-binary identities, and who ‘counts’ as having an innate variation of sex characteristics or being intersex, into legislation. Symmetrical grounds such as “gender, gender identity, or gender expression” and “sex characteristics including innate variation of sex characteristics” provide more inclusive and open protection.

(This is chapter 7 in the consultation document and questions 8-9)

When should exceptions apply?

The Act has a large number of exceptions - times when it’s okay to discriminate. Because we’re suggesting a change to the existing ground of sex, the Act might need to specify when these exceptions might apply, and which parts of the new “sex or gender” ground would apply.

We think every exception should only be used for good reason - “when advancing an underlying policy rationale” - and that the reason has to have good evidence. This would mean someone discriminating under an exception would have to prove that they have a good reason to do so.

(This point relates to questions 10 & 12, as well as lots of other questions about exceptions in the consultation document. You can also provide your general thoughts in question 80)

How should the Act define “sex”?

Currently, the Act doesn’t define sex. The Law Commission have asked whether it should, and how. They’ve suggested defining it as “biological sex”, “the sex recorded on your birth certificate”, or leaving it alone.

We recommend leaving sex undefined. “Biological sex” is an imprecise, ambiguous concept, and not everyone in Aotearoa is able to access an updated birth certificate - especially those born overseas.

Defining “sex” in the legislation would render any anti-discrimination protections given to trans people redundant - people could discriminate against our communities and say it was based on sex, not gender.

Leaving sex undefined in the Act would give judges ruling on discrimination cases flexibility to decide based on case law and the case in front of them.

(This is question 11 in the consultation document)

Other key issues

The Issues Paper has detailed discussions about a number of exceptions in the Act, Other issues in the Act that might be important to you include:

• Employment & education (chapters 9 and 12)

• Single-sex spaces (chapter 13)

• Sport (chapter 14)

• Misgendering & deadnaming (chapter 17)

Make sure your voice is heard! Submit by 5 September at https://www.lawcom.govt.nz/our-work/ia-tangata/tab/issues-paper

About the Rainbow Support Collective

This statement was developed by the Rainbow Support Collective, an alliance of organisations which primarily work to support the human rights, health and wellbeing of rainbow populations in Aotearoa. The collective comprises both national and regional organisations. Together our organisations make up hundreds of dedicated staff and volunteers, who are committed to supporting thousands of takatāpui and rainbow New Zealanders.