The Women’s Rights Party says the Government’s
response shelving the Law Commission’s Ia Tangata report
is good news – for now.
Co-leader Jill Ovens hopes
this will be the end of decades of campaigning by ‘trans
allies’ to add ‘gender identity’ as a protected ground
in the Human Rights Act 1993 [HRA] without appreciating the
impact on sex-based rights, particularly of women and
girls.
In its formal response to Parliament yesterday
[Monday, 23 February] the Government said that as it
“currently has significant commitments and priorities in
the justice portfolio, progressing the Commission’s
recommendations is not a priority at this
time”.
This means that unless there is a change of
government and a new government chooses to bring it to life
again, the matter is closed.
“We think political
parties would be silly to campaign on reviving the issue.
Polls have shown for several years that most New Zealanders
do not support men competing in women’s sports, or
accessing women’s toilets and changing facilities,” Ms
Ovens says.
This is not the first time the issue has
been put in the ‘too hard basket’. New Zealand’s first
transsexual MP Georgina Beyer’s attempt to include
‘gender’ into the HRA in a 2004 Private Member’s Bill
was considered ‘too hot to handle’ ahead of the 2005
General Election.
Beyer withdrew the Bill after the
then Labour-led Government referred the matter to Crown Law
which, in 2006, issued an opinion that there was no need for
additional protections on the grounds of ‘gender
identity’ in the HRA because these protections were
already provided under the ‘sex’ category.
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This
has never been tested in the Courts, but the Human Rights
Commission and other public bodies continue to promulgate
the Crown Law Opinion as if it was fact. Policies have been
widely implemented by Councils, employers, schools, and gyms
embedding rights based on ‘gender’ without consideration
of women’s rights to privacy and safety.
Ms Ovens
says a problem is that Crown Law did not clarify whether
those who do not conform to sex stereotypes were covered in
the HRA as the sex they ARE, or as the sex
they want to be.
“We say it is
clear that when it refers to ‘sex’, the wording in the
HRA means biological sex, because the first prohibited
ground of discrimination is ‘sex, including pregnancy and
childbirth’. Only human females can get pregnant and give
birth, no matter how they identify.”
Former Green
Party MP Elizabeth Kerekere’s Private Member’s Bill to
prohibit discrimination on grounds of “Gender Identity or
Expression, and Variations of Sex Characteristics” sought
to legislate ‘gender identity’ as a protected ground in
its own right.
The 2021 Bill was drawn from the
‘biscuit tin’ in August 2023 and passed its first
reading in the dying days of the then Labour
Government.
The Bill went no further under the
incoming Coalition Government because, in 2022, then
Minister of Justice Kiritapu Allan had asked the Law
Commission to review the protections in the HRA for
“people who are transgender or non-binary and people with
innate variations of sex characteristics”.
The
Women’s Rights Party was one of a number of organisations
that submitted in the Commission’s process resulting in
the Ia Tangata Report issued in September 2025, which
followed an earlier Issues Paper distributed the year
before.
“We argued that demands for rights based on
‘gender identity’, would inevitably negate hard-won
women’s rights,” Ms Ovens says.
Adding ‘gender
identity’ to the grounds for unlawful discrimination would
undermine the exceptions based on sex in Part 2 of the HRA
that allow for positive discrimination to protect women’s
and girls’ rights with respect to intimate services and
facilities, and women’s sports, for example.
“The
question of whose rights would take precedence (i.e.
women’s sex-based rights, or new rights protecting men
claiming identity as women) would inevitably have to be
decided in a Court of Law,” Ms Ovens says.
The
Women’s Rights Party says that any changes to the law
which reduce or remove the protections on the grounds of
sex, both the anti-discrimination provisions and the
exceptions where discrimination is permitted on the grounds
of safety, dignity and privacy, would be in breach of the
Convention on the Elimination of Discrimination Against
Women [CEDAW] to which New Zealand is a signatory.
In
its Ia Tangata report, the Law Commission recommended
changes to the 19 existing exceptions in the Human Rights
Act that would affect single-sex schools, single-sex sports
categories, single-sex changing facilities, and single-sex
accommodation such as boarding hostels.
It also
conflated protections required by those with differences of
sex development or DSDs (referred to by the Commission as
‘innate variations of sex characteristics’).
In
addition, sexed language in the HRA was to be replaced,
including language referring to pregnant women, because
“most people giving birth are women, but not
all”.
