OPINIONPoliticsMay 7, 2024

Adding gender to the Human Rights Act – what’s the big deal?

Guest writer

Adding gender to the Human Rights Act would simply make the implicit explicit. So why is it so controversial? Paul Thistoll explains.

At present, Aotearoa’s 1993 Human Rights Act (HRA) includes sex, marital status, religious belief, ethical belief (meaning a lack of religious belief), colour, race, ethnicity or national origin, disability, age, political opinion, family status and sexual orientation as protected grounds of discrimination (section 21).

A noticeable exception from this list is gender identity – the right to be free from discrimination based on your freely chosen gender. Why is it not there and why is its inclusion proving so difficult?

The HRA, along with the 1990 Bill of Rights Act (BORA) is an important codification into New Zealand law of the UN’s International Covenant on Civil and Political Rights (ICCPR) – signed and ratified by New Zealand in 1978. It is important to note that the UN’s Human Rights Committee has consistently interpreted Article 14 of the ICCPR, which prohibits discrimination on the basis of sex, as implicitly including gender. Additionally, the UN Committee on the Elimination of Discrimination Against Women also interprets sex discrimination to include discrimination based on gender identity.

To uphold this work in New Zealand, groundbreaking transgender MP Georgina Beyer proposed to add gender explicitly into the HRA via a members’ bill in 2006 (drafted in 2004). However, then attorney-general Michael Cullen was supplied with an influential opinion from the solicitor-general which advised that based on overseas precedents and interpretations, gender was already included in the HRA. Cullen then used this opinion as justification for Labour not supporting Georgina’s members’ bill, as it was to his formidable mind unnecessary and inelegant. Beyer then withdrew the bill.

Georgina Beyer makes her maiden speech in 2000

While there has been no further legislative movement since then, government departments and other organisations, including the Human Rights Commission (HRC), have developed policy as if the Crown Law opinion, expressed by the solicitor-general, is true and valid. The HRC, for example, has always assessed complaints as if gender were identified explicitly in the HRA. The problem is that this opinion has, to the best of our legal knowledge, never been tested at the Human Rights Review Tribunal.

Thus, we find ourselves in a situation where policy is being made based on an opinion that is now 17 years old and untested.

In that time, society has progressed significantly concerning gender identity. The legislature has passed bills allowing people to freely choose their gender – the Self-ID bill (Birth, Deaths, Marriages, and Relationships Registration Act 2021), and outlawed gender conversion therapy (Conversion Practices Prohibition Legislation Act 2022). Among other significant decisions that have been made, the New Zealand Association of Counsellors, the New Zealand Psychological Society, and the Royal Australasian College of Psychiatrists have all embedded gender-affirming care into their codes of practice.

At the same time, the Ministry of Health has continued to support the provision of gender-affirming care. While delivery of this care is decided by individual regions, resulting in limited access to procedures such as top surgery, this is the result of funding and prioritisation issues rather than an ideological or evidence-based opposition to gender-affirming care. The ministry has taken a number of actions to support primary care providers in giving gender-affirming healthcare to adults, such as funding pilot programmes to improve patient access and developing training for GPs who wish to learn more. Puberty blockers are available to transgender youth presenting with gender dysphoria via endocrinologists, and new guidelines for their use are currently being developed by PATHA.

Other signs of social progress abound – for instance, the Christchurch City Council found that women-only swimming sessions that were explicitly trans-inclusive were highly popular and in fact, became oversubscribed.

The growth of social media during this time, however, has undermined progress towards a society that accepts people freely choosing their own gender identity. Gender-critical voices, such as trans-exclusionary radical feminists (TERFs) and transphobes, have exploited the divisive nature of social media, particularly Twitter/X to create the impression of having a much louder voice than they actually have. I myself decided to deactivate my personal X account because the platform has become a deeply inhospitable place under the free speech absolutist Elon Musk.

Besides raising the interesting question of the extent to which free speech should be allowed to interfere with societal progress on human rights, this situation with making the implicit explicit seems to represent something of a conundrum.

Luckily the Human Rights (Prohibition of Discrimination on Grounds of Gender Identity or Expression, and Variations of Sex Characteristics) Amendment Bill, put forward by the esteemed scholar of takatāpui and then-Green MP Elizabeth Kerekere as a members’ bill, was pulled from the biscuit tin in 2023.

Since the last election, the bill has been passed over to Debbie Ngarewa-Packer, co-leader of Te Pāti Māori.

The bill is elegantly drafted and seeks simply to make explicit what is currently implicit. It inserts the following clauses in the HRA: “after section 21(1)(a): (ab) gender identity or expression, which means the self-identified gender, name, pronoun, appearance, mannerisms or other gender-related characteristics of a person, with or without regard to the person’s assigned sex at birth: (ac) variations of sex characteristics.” It further defines sex characteristics later on.

So why should making the implicit explicit be so controversial?

Government departments have been making policy as if Ngarewa-Packer’s bill was already passed for the last 17 years.

Countering Hate Speech Aotearoa intend to lend their voice vociferously to the debate around Ngarewa-Packer’s bill. We believe that our side of the narrative is much easier to sell than our critics’ – this bill will bolster human rights protections for an often-discriminated minority and does not alter the rights or freedoms of any other group.

Just as with the self-ID bill, if Ngarewa-Packer’s bill passes nothing much will change overnight – structures, institutions,and policies will all survive and nothing terrible will happen. The gender-critical voices will have to argue that denying trans people their human rights is a good thing and this is a difficult narrative for them to pursue. Everyone likes human rights, right?

Paul Thistoll is the CEO of Countering Hate Speech Aotearoa. CHSA has a focus on LGBTQIA+ issues, with a particular interest in the rights of transgender, intersex, gender-diverse, gender-queer and non-binary people.

Keep going!

The kiwi is in Shane Jones’s sights

PoliticsMay 6, 2024

At last! The kiwi is getting its comeuppance

Hayden Donnell

Contributing writer

The kiwi is in Shane Jones’s sights

For too long our so-called national bird has maintained its stranglehold on the economy of regional New Zealand. Thanks to the fast track legislation, we will have our revenge.

Theories abound on what ails New Zealand’s economy. National leader Chris Luxon has posited that we’re negative, wet, whiny, and inward-looking; bereft of mojo and no longer in possession of the plot. Others have pinned the blame on a tax system that overburdens work and underburdens capital, employment rules designed to keep wages low, local government restrictions that constipate construction and create chronic housing shortages, and a transport network designed to impede anyone who’s not actively running over a child in a Ford Ranger.

Some of these arguments have merit. Our mojo meter, in particular, has been running low. But none of them are enough on their own to explain why unemployment keeps rising and business confidence keeps sinking. Despite extensive efforts, no politician, journalist, or even Spinoff blogger has ever satisfactorily diagnosed the rot festering in the heart of this country’s finances.

That is, until March 7, when Shane Jones stood up in parliament to speak at the first reading of the fast track consenting bill. His speech started strong, with references to Geoffrey Palmer and “resource endowments”, before elevating into a face-melting indictment of a national scandal. “Gone are the days of the multicoloured skink, the kiwi, many other species that have been weaponized to deny regional New Zealand communities their right to a livelihood,” he said.

At last. For too long, this country has coddled the kiwi and its ragtag band of allies. We’ve put a kiwi on our $1 coin. Allowed ourselves to be named after the bird. Fostered an environment where overseas writers call it the “suppository night goblin heathen worm queen of wet earth”.

On the rare occasion where someone has stood up to a kiwi, for instance by torturing it in a brightly lit hell container of unwelcome hands, we’ve emitted a beam of fury so intense that it has forced zoo ambassadors to beg for forgiveness under the unmerciful gaze of Ryan Bridge.

Miami Zoo ambassador Ron Magill grovels to Ryan Bridge on AM

As we’ve done its PR around the globe, the kiwi has been sabotaging our society from the inside. Its comically round body and impractical eggs are a deception, designed to keep you from properly identifying it as a gun pointed at the head of our small towns. It has turned our affection against us, using the prospect of our national bird going extinct to kill off the most treasured native species of all: fast-paced regional economic development. But, as Jones solemnly notes, it hasn’t done its malign work alone.The kiwi has co-conspirators. In parliament, he fingered the multicoloured skink. Previously he pointed the finger at the blind frog Freddy*.

Other government ministers have shied away from admitting the fast track bill will free the country from the clutches of this defenceless animal alliance. Chris Bishop has sold it as a tool for streamlining renewable energy. Nicola Willis says it’s aimed at changing how our economy’s operating to meet climate change goals. Luxon says it’s how we’ll get “more wind farms, more geothermal plants, more solar energy plants”.

These ministers are not brave enough to stand up to the might of Big Kiwi. Their PR messaging is designed to disguise the bitter taste of the medicine healing our economy. Jones is the straight talker in this coalition, and he says this bill is about nutting up, doing what’s right, and steamrolling some critters on the way into a mine. Even if a wind farm or two gets built along the way, the goal is to stop flightless birds and friendly skinks standing in the way of our prosperity.

An all-too-powerful kiwi (Photo: Getty Images)

That’s a relief. Factory fumes may be toxic, but there’s nothing more toxic than allowing love to stand in the way of your growth. Jones is determined not to let feelings hold us back any more.

There’s no time for him to rest on his laurels though. Just as the fall of Morgoth paved the way for the rise of Sauron, the kiwi’s decline creates a gap at the top of the country’s animal organisational chart, waiting to be filled by another all-powerful powerless endangered animal. The days of the kiwi are nearly over. But the government is going to have to keep designing more “environmentally friendly” legislation. The last thing we need is the age of the kākāpō.

*This may have been a case of mistaken identity. The Archey’s frog to which Jones was referring is deaf, not blind.**

** A previous version of this footnote said New Zealand has only one native frog species. It in fact has three!