The curious case of Pride vs the Lesbians: Part 4.

Legal aspects of the LAVA case against Wellington Pride

This issue of THE MINISTRY HAS FALLEN is Part 4 of The curious case of Pride vs the Lesbian series and focuses on the legal aspects of LAVA’s human rights case against Wellington Pride.

Read Part 1. In which it's all inclusion and aroha, but not for lesbians.
Read Part 2: Lesbianism, patriarchy’s final frontier
Read Part 3: Gender extremist attacks on lesbians: three quick case studies

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What is the case?

Hilary Oxley and Margeret Curnow, on behalf of their group Lesbian Action for Visibility Aotearoa (LAVA), are taking Wellington Pride Festival Incorporated to the Human Rights Review Tribunal. The case number is HRRT 053/22.

What is the Human Rights Review Tribunal?

The Human Rights Review Tribunal (HRRT) hears claims about breaches of the Privacy Act 2020, the Health and Disability Commissioner Act 1994, and, relevant to this discussion, the Human Rights Act 1993 (HRA). Tribunal members are appointed: the Governor-General appoints the Chair and Deputy Chair on the recommendation of the Minister of Justice, other members are appointed directly by the Minister of Justice.

What’s the gist?

LAVA believes its members have been discriminated against because of their political beliefs, beliefs based around the proposition that men can’t be women. The gist of the case is to find out whether, according to law, this has happened. It’s slightly complicated and involves several intertwining issues.

Was Wellington Pride offering a service?

First, the Tribunal has to establish whether Wellington Pride, in making a public call to Rainbow groups to apply for stalls, was providing a service to the public. This is important because it tells us if the Human Rights Act 1993 actually applies to what happened.

Section 44 of the HRA says people who supply goods and services to the public must not discriminate. If, however, it is found to be a private event, the HRA would not apply and Pride could decide who was allowed to hold stalls for whatever reason it wanted. As the song goes, it’s their party, they can be anti-lesbian if they want to.

If it was a service, did Wellington Pride discriminate on one of the HRA-protected grounds?

Section 21 of the Human Rights Act lists 13 grounds on which, if the Act does apply to you, you must not discriminate. It includes sex, race, ethnicity, religion, sexual orientation, and a bunch of other prohibited grounds. Pertinent to this case is the prohibition of discrimination on the grounds of ‘political opinion’.

This is a big deal. On the HRRT decision web page, I can’t see any record of a previous case focused on political opinion.  Apparently, some cases in the 1990s talked about bus drivers with communist sympathies. This case could set a modern precedent, not just for those who want to be true to their belief in biological sex, but for anyone who fears that their political opinion might see them booted out of a job, a restaurant, or a house.

Can the views expressed by LAVA be considered ‘political opinion’?

Wellington Pride acknowledges that it refused LAVA’s stall because of their ‘trans-exclusionary views’. LAVA’s primary case is that its members’ views on trans issues are political opinions. If they are found to be political opinions then Wellington Pride might, according to law, have discriminated against LAVA members.

But if Wellington Pride did discriminate, was it justified because of a need to protect transgender and non-binary people?

But wait, there’s more! If Wellington Pride did discriminate, there’s a potential legal out. Section 73 of the Human Rights Act 1993 lays out instances where discrimination is deemed okay. They’re grouped under the heading ‘Measures to ensure equality’.

If discrimination occurs, Section 73 states, it will not constitute a breach of the Act if:

(a) it is done or omitted in good faith for the purpose of assisting or advancing persons or groups of persons, being in each case persons against whom discrimination is unlawful by virtue of this Part; and

(b) those persons or groups need or may reasonably be supposed to need assistance or advancement in order to achieve an equal place with other members of the community.

This is interesting. If Pride claims that transgender people are so marginalised that the discrimination against others was justified in order for trans people to “achieve an equal place with other members of the community” is such a claim reasonable? Many insist that trans people are the most discriminated against and marginalised group ever, anywhere and in all time. I don’t think the facts support this but it might be the argument made by Wellington Pride.

Was Wellington Pride acting in ‘good faith’?

You’ll note in the wording of Section 73 that any measures to ensure equality must be made in ‘good faith’. If Section 73 is part of Wellington Pride’s arguments, was that organisation, in refusing to let LAVA display its map of lesbian history, acting in ‘good faith’ to protect its trans and non-binary whanau?

A reminder that LAVA wasn’t there to chant trans women are men or wear lesbians don’t like dick t-shirts. The problem was, according to Wellington Pride, that LAVA members simply thought such things. This gives rise to supplementary questions. Could other people attending Out in the City also have had the wrong sorts of thoughts?  Was everyone vetted at the door for their opinions on trans issues? Could Pride guarantee an atmosphere free of people with TERF-like thoughts?

Are trans and non-binary people protected under the current version of the Human Rights Act?

The ‘measures to ensure equality’ section brings up another issue. Is discrimination against trans and non-binary people prevented by the Act?

Bear with me. Section 73 of the HRA, the Measures to Equality section, only applies to those groups covered in Section 21, the Grounds of Discrimination section. This means that if Wellington Pride argue discrimination against LAVA was necessary to protect trans and non-binary people it’s got to show that Section 21 covers transgender and non-binary people.

Let’s jump back a bit. While gender identity and gender expression are not explicitly listed in Section 21, the Human Rights Commission has long taken the position that they are covered in the Act under the ‘Sex’ ground. Back in 2006, Crown Law advised as much to the Attorney-General. This opinion, however, has never been tested in court. 2006 was a long time ago as well. That Crown Law opinion pre-dates the more recent expectations of some people who identify as trans or non-binary, that in every sex-based scenario (toilets, changing rooms, sport, prisons, refuges etc), they may use the facilities or category of their choice.

Ambiguity around the issue remains and that ambiguity prompted the Law Commission this year to instigate a review of whether the current wording of the Act adequately protects transgender people, those with innate variations of sex characteristics, and those who are non-binary. That review is still in progress.

The LAVA case, however, will be taken under the version of the Act in place at the time of the alleged discrimination. Remember the issue here is not whether trans and non-binary people should be protected under the Act, it’s whether, in law, gender identity is a characteristic that is protected from discrimination.  

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If you care about sex-based rights, lesbian rights, or the right to hold a political opinion without discrimination, and you have some spare change, then LAVA could really use some financial support for their court case:

Support LAVA’s human rights case against Wellington Pride