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.

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.

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.