Protections for trans and non-binary people under the Human Rights Act

In which I make a submission to the Law Commission

Overview

What’s happening?

Te Aka Matua o te Ture, the New Zealand Law Commission makes recommendations to the government on how to improve law. It’s currently reviewing the protections under the Human Rights Act 1993 for “people who are transgender, people who are non-binary and people with innate variations of sex characteristics”.

The Commission is accepting submissions until 5pm on Thursday the 5 September. There’s a really long Issues Paper and 80 questions about various chapters of the Paper, but you don’t have to answer all of them.

Section 21 of the Human Rights Acts lists various prohibited grounds for discrimination. At the moment sex is listed but nothing on gender. To date, the Human Rights Commission has decided sex includes gender identity and has been acting accordingly but that’s never been tested in law. One of the proposals in the Law Commission’s Issues Paper is to introduce gender identity and gender expression as new prohibited grounds.

If gender identity and/or gender expression are put into law this, in my own and many people’s opinions, gives legal weight to concepts that are not part of our material reality. Rather these are concepts that are part of a belief system held by only some of our population. As such they shouldn’t be introduced into law.

The other main concern is that such amendments would give legal support to those people who want to stop females (in particular) being able to do stuff without males involved. The idea that we can’t ever discriminate between those born female and those born male is an incursion on our rights to autonomy, freedom, association and assembly. It could allow a single male, who could use the amended Act to claim discrimination, to prevent any group of females from having single sex events, spaces, sports or services. I’m failing, as I think about it, to see this as any different from women requiring men’s permission to do stuff without them. Not a fan.

You might be interested in some of these links:

• Ia Tangata: the Law Commission page on its review with all the information and links to make an online submission.

• Human Rights Act Review page on the Speak Up For Women site. SUFW’s written submission and ideas for your own submission will be up soon.

• Carrying the torch for our foremothers: transcript of Mana Wāhine Korero’s submission to the Law Commission.

• Should NZ law acknowledge ‘gender identity and expression’? on the Women’s Rights Party site. WRP will be putting up their written submission soon as well.

My general response

So, I think the Law Commission was trying to be balanced. It acknowledged that there were contested views about many of the issues and that there were different ideas about what sex and gender meant. It acknowledged and did not dismiss concerns about single-sex spaces. However, despite these attempts, the Commission leant into ideas about discrimination, gender identity and the nature of reality that only make sense if you align with those who believe that biological sex is able to be changed, is on a spectrum and that gender identity is a universal experience. This made it challenging to respond to as I had to navigate language which was not grounded in clear or rational concepts.

I only answered a few of the questions. In summary my arguments were:

• Having variations of sex characteristics is a different experience to being transgender or non-binary and the issue should be dealt with separately. My submission will focus on protections for transgender and non-binary people.

• Gender, gender identity and gender expression are individual experiences rather than verifiable facts and so those and associated ideas should not be put into law.

• Bring transgender and non-binary are belief systems and are adequately covered by the NZ Bill of Rights Act, which protects freedom of belief.

• The Law Commission should be wary of the claims of discrimination made by transgender and non-binary people and cited as evidence of discrimination in the Issues Paper because it relies on self-reporting. Those self-reporting are likely to be influenced by a popular narrative promoted in the media and by government agencies that suggests (a) difference of opinion (i.e. believing in biology) is discrimination and (b) that being excluded from single-sex spaces is discrimination. In fact both these ideas are contestable and could be understood in more positive ways, as difference of opinion and protection of sex-based rights.

• The objectivity and research quality of the Transgender Health Research Lab that produced Counting Ourselves, also used as evidence of discrimination in Chapter 3, is questionable due to the recent extremely low ranking of the Lab’s flagship publication transgender healthcare guidelines in the University of York recent Systematic Review of transgender health guidelines.

• On the question of what should be considered when thinking about law reform in this area the Law Commission has not included the most important consideration: the real-life impacts of any reform, particularly on women and girls.

• That gender identity and gender expression should not be added to Section 21.

• That sex, in Section 21, should be defined, making it clear it is about biology.

• That misgendering and deadnaming should not be considered discrimination, (thanks for asking all the same!). Those things are, of course, merely a difference of perspective.

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Submission

Q1 Experiences with discrimination

The Law Commission asked:

• Is there any other information about discrimination experienced by people in these groups that you think it is important for us to consider? Please explain your answer:

My response:

1. The characteristic of being transgender or non-binary (identity) is completely different to the characteristic of having innate variations of sex characteristics (physical). These are two different phenomenon and should be addressed separately rather than conflated.

2. In my submission I will be focusing on discrimination against transgender and non-binary people.

3. The Human Rights Commission, numerous NGOs, social media and the New Zealand media have promoted the position that anyone who does not affirm a transgender or non-binary person's identity, and anyone who expresses allegiance with a view of sex that is grounded in biology are instances of “discrimination”. This, however, is often simply a difference of belief rather than discrimination. Tolerance of belief is fundamental to a democratic society that upholds human rights.

4. It is in this context, of a loose definition of ‘discrimination’, that many trans and non-binary people will answer self-reporting surveys like ‘Counting Ourselves’ which have been cited as evidence for discrimination in Chapter 3 of the Issues Paper. It will also be reflected in statistics around the complaints different agencies receive. The Commission should be wary of using such statistics and survey results as evidence of discrimination.

5. In addition ‘Counting Ourselves’ and other papers were produced by the Transgender Health Research Lab at University of Waikato. A recent systematic review of research from the Lab brings into question the Lab’s objectivity, credentials, research quality and methodology. (See Taylor J, Hall R, Heathcote C, et al Clinical guidelines for children and adolescents experiencing gender dysphoria or incongruence: a systematic review of guideline quality (part 1) Archives of Disease in Childhood Published Online First: 09 April 2024).

6. The Lab has produced the “Guidelines for gender affirming healthcare for gender diverse and transgender children, young people and adults in Aotearoa”. These guidelines alongside 22 other guidelines were part of a systematic review of guidelines by the University of York and assessed against AGREE II, the international standard for assessing the development of guidelines.

7. Of the 23 guidelines assesses the Transgender Health Research Lab’s guidelines scored second to worst overall. The Lab guidelines failed to meet the 70% threshold required for recommendation in practice on all six AGREE II domains. Notably it achieved less than 30% on Rigour of Development (12%), Applicability (21%) and editorial independence (0%). As the Lab’s flagship publication it is reasonable to assume the same flawed editorial processes and research standards are applied to other publications produced by the the Lab including ‘Counting Ourselves’. Assertations of discrimination based on ‘Counting Ourselves’ should be treated with skepticism by the Commission.

8. A further complication arises from the self-reporting. Media, social media and many government agencies tend to support the idea that transgender people are entitled to enter single-sex spaces reserved for the sex with which they identify. Those reporting, for example, that they avoided gyms, are likely to be doing so because they wish to enter a single sex gym of their nominated gender rather than their birth sex. This is a negative interpretation of single sex policies viewing it as discrimination against transgender people and prevention of their participation or entry despite their entitlement. Another interpretation is that it is a protection of spaces and rights reserved for a biological class of people, and that this protection allow the full and safe participation and autonomy of members of that class. None-the-less the popular narrative is likely skew results towards a very broad and in fact untenable definition of discrimination. Again the Commission should be wary of such accounts and recognise that one person’s “discrimination” may be another person’s “safety”.

Q2: Key reform considerations

The Law Commission asked:

• In Chapter 4, we identify some key reform considerations we think the Law Commission should bear in mind when proposing law reform in this review. Question 2: Do you agree that we should treat these matters as the key reform considerations for this review?

My response:

1. 4.1 of the Issues Paper lists six categories of considerations that Te Aka Matua should bear in mind when proposing law reform. While these considerations are all reasonable, they fail to surface what should be the key consideration which is the impact of changes in legislation.

2. When discrimination and equality is discussed in theoretical terms, as happens in Chapter 4, it is difficult for members of the public to engage with what the real world impacts of law reform would be. While many people fully support the principles of freedom from discrimination and equality for transgender people they also wish to retain sex-based protections.

3. 6.34 of the Issues Paper points to the 2023 Ispos Survey which showed 84% of people think that transgender people should be free from discrimination. A Curia Poll carried out in the same year showed only 34% of people thought men who identify as women should be let into women’s spaces. This shows a clear discrepancy between the support for anti-discrimination principles and support for what some (but clearly not all) might consider discrimination—the preservation of female spaces for those born female.

4. The proposals, including that to add gender identity and gender expression into section 21 of the Human Rights Act as prohibited grounds of discrimination, should be considered and discussed in light of the impact on policies and practice, not only in terms of the principles of equality and discrimination.

5. Consideration should be given to the extent to which the addition of such grounds will impact on the human rights of the biological classes of male and females including the right to freedom of association and freedom of assembly as protected in international human rights law.

6. Of particular concern is the possible impact of introducing such grounds on the autonomy and independence of the biological class of females. If males who identify as females can claim discrimination if they are excluded from female events they essentially hold a veto over female action. Females will only be able to organise their own activities, services or events if males who wish to participate choose not to challenge them doing so.

7. Lesbians who consider that only natal females can be lesbians could be prevented from organising their own events in public spaces because they risk a claim of discrimination being taken by a natal male who believes himself lesbian.

8. Female survivors of male sexual abuse who are traumatised in spaces with males (regardless of their identity) may face discrimination charges if they fail to allow males to attend survivor meetings even though that might prevent female survivors from getting the support they need.

9. Muslim women who will only participate in female-only swimming sessions may find those swimming sessions now include transwomen and will stop using Council facilities.

10. Consideration should be given to the impact on safety of and opportunities for women and girls.

Q6: Section 21 feedback.

The Law commission asked “In Chapter 6, we reach a preliminary conclusion that an amendment to section 21 of the Human Rights Act 1993 is necessary and desirable to ensure adequate protection from discrimination for people who are transgender or non-binary or who have an innate variation of sex characteristics. Question 6: Do you have any feedback on this preliminary conclusion?”

1. Your conclusion rests on the unclear and confusing definitions of gender identity, transgender and non-binary used in Chapters 1 and 2. Transgender and non-binary people are considered as those who experience discrepancy between their “gender identity” and their "sex assigned at birth".

2. There are some requirements for law. It must be practical; and (as your Paper states) must achieve a balance between certainty and flexibility; and must be accessible so that “people can find them, navigate them and understand them”.

3. However gender, gender identity, transgender and non-binary are not clearly defined. The Issues Paper itself points to the various meanings these terms can have.

4. Gender identity and being transgender or non-binary is an internal feeling or belief about one's gender. It is a notion, therefore, that is unverifiable, unique to an individual, and not part of a shared, universal frame of reference. It exists only in people's minds not in the material world. When the concepts of being transgender, being non-binary, gender identity and individual gender identities themselves are all contested beliefs, rather than verifiable facts, then we should not put these concepts into law. Law needs to be practical and enforceable.

5. On its page about the right to freedom and belief the Human Rights Commission website states that the right to believe is “not limited to religion”. It also states

   "The New Zealand Bill of Rights Act 1990 (BORA) affirms the right to freedom of thought, conscience, religion and belief, including the right to hold and embrace views without interference; protects the right to express religion and belief in worship, observance, teaching and practice; affirms the right of minorities to be free from discrimination."

6. People who identify as transgender and non-binary and advocate for recognition as their nominated sex are people who hold a belief. Their belief system typically is that gender identity exists and is an essential element of who they are, that sex is “assigned” at birth and that they personally have a gender identity that differs from their "sex assigned at birth" and that they should be treated according to their identity not their sex. It is similar to a person who believes in God and holds their Christian faith as an essential element of their identity, or a person who believes in astrology and makes decisions around their identity as a Virgo.

7. The Bill of Rights Act as it currently exists should be sufficient to protect people who identify as transgender or non-binary from discrimination on the grounds of their belief. If discrimination is found to be a genuine problem then clarification about BORA and its protections could be better publicised or enforced. This avoids introducing ideas based on the nebulous concepts associated with gender identity into the HRA.

8. Sex, based on whether bodies go down a development pathway towards producing sperm or producing eggs, is the basis of human reproduction and the result of evolution. It is verifiable, common knowledge and provides a shared frame of reference.

9. People can guess with high accuracy if someone is male or female (see for example, Bruce V, Burton AM, Hanna E, et al. ‘Sex discrimination: how do we tell the difference between male and female faces?’ Perception. 1993; 22(2);131-52).

10. A large portion of New Zealanders, from every ethnic background, hold a belief in binary sex and consider biology and evolution to be factual. They recognise male and female as accurate categories that are both grounded in reality and align with their perception.

11. Their right to hold and express beliefs about sex and about the sex of any individual is protected by the BORA. Amendments to the HRA must not undermine this right by suggesting only one view of sex and gender or someone’s gender identity is allowed to be expressed.

12. Section 21 should be amended to clearly define sex. The definition should be biologically based, for example, whether an individual has been on the development pathway towards the production of eggs or the production of sperm.

Questions 58-60 on Single-sex facilities

• I wrote variations of the statement: It is imperative that single sex facilities remain for the safety and comfort of girls and women.

Question 75: Misgendering and deadnaming

• I said yes to: The Act should provide that misgendering and deadnaming are never unlawful under Part 2 (option 2).

• And I wrote: Misgendering and deadnaming are not forms of harassment or discrimination. They simply indicate a different viewpoint from the person requesting people use particular names or pronouns.

Question 76: Should this binary language be replaced by gender-neutral language?

• I said: No: We need binary language because sex is binary.

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Go to Ia Tangata and do your own submission

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