Last week [28 July] the Human Rights Commission (HRC)
changed its statement at the bottom of a media release about
transgender guidelines in sport.
Responding to
complaints about misinformation stating that “gender
identity and expression” are prohibited grounds of
discrimination under the Human Rights Act when it is
NOT, the HRC responded to complainants with
the following:
“We understand that some members of
the public were concerned that our original media statement
suggested that gender identity and expression are explicitly
listed in the Human Rights Act 1993 or the legal definition
of the ground of sex.
“We have heard the view that
the language used may have been unclear, and we acknowledge
that some people have felt that the statement did not
reflect or protect their understanding of sex-based
rights.
“Considering the feedback we have received,
we have updated our public statement to provide greater
clarity and accuracy regarding the relevant legal framework.
This amendment was made to more accurately reflect the
language of the Act, while still setting out the
Commission’s application of how gender identity and gender
expression are interpreted within the scope of the
prohibited ground of sex. The amended statement can be
accessed on our website here.”
Advertisement – scroll to continue reading
The
HRC reply continued, saying that as part of its mandate the
Commission interprets the Human Rights Act in line with
international human rights standards and New Zealand’s
obligations under those frameworks.
“It is our
long-standing view that discrimination based on gender
identity or gender expression falls within the prohibited
ground of sex discrimination, and this has informed our
guidance over several years.”
The Women’s Rights
Party has responded, asking the HRC to clarify just which
international human rights standards and obligations New
Zealand has signed up to. We have yet to receive a response.
We suspect the HRC is relying on the Yogyakarta Principles,
which have no standing in international law and have never
been adopted by the United Nations. When he was the Human
Rights Commissioner, Paul Hunt signed up to these
Principles, which set out rights put forward by participants
at a conference in Yogyakarta, Indonesia, in 2006 (and
revisited 10 years later).
Why it is important to be
clear about “sex”
When it comes to women’s
rights, sex matters. That is because, in addition to
“sex” being a prohibited ground in terms of
discrimination in the Human Rights Act 1993, there are a
number of exceptions in the Act that allow positive
discrimination to protect women on the basis of
sex.
When the Human Rights Act was drawn up in 1993 to
comply with the Convention for the Elimination of
Discrimination Against Women (CEDAW), it was understood that
sex meant women and men. The fact that the prohibited ground
of sex was qualified by reference to pregnancy and
childbirth suggests that this was the understanding of
sex.
In fact, unless sex is defined in terms of
biological sex, the sex-based exceptions that currently
protect women’s single-sex spaces and women’s sports are
meaningless.
Sexual orientation, referring to same-sex
attraction or opposite sex attraction, is also meaningless
if it doesn’t refer to biological sex.
In Australia,
lesbians are not allowed to have lesbian-only events or
get-togethers, including social media groups, because in
2013 the Australian Sex Discrimination Act removed the
definition of sex in terms of men and women, and replaced it
with “gender”.
It was on this basis that Roxanne
Tickle, a man who identifies as a woman, was able to win his
case against Sall Grover’s app for women and girls only.
The Tickle v Grover case is currently being heard
this week (4-9 August) in the Australian Federal
Court.
Sex-based exceptions in the Human
Rights Act include s27 of Exceptions in Relation to
Employment Matters, which allows for different
treatment based on sex or age where being of a particular
sex or age is a genuine occupational qualification for the
position or employment, for example, a counsellor
specialising in highly personal matters such as sexual
matters or the prevention of violence.
Here are some
more…
Section 43 Exceptions in relation to access
by the public to places, vehicles, and facilities
S43
allows for the maintenance of separate facilities for each
sex on the ground of public decency or public
safety.
Section 44 Provision of goods and
services
Suppliers of goods, facilities, or services
to the public can’t refuse to provide any other person
with those goods, facilities, or services; or to treat any
other person less favourably in connection with the
provision of those goods, facilities, or services by reason
of any of the prohibited grounds of
discrimination.
Section 46 Exception in relation to
public decency or safety
Notwithstanding s44, in s46
suppliers of good and services can provide separate
facilities or services for each sex, i.e. single-sex
services or spaces, are allowed on the ground of public
decency or public safety.
Section
47 Exception in relation to
skill
Where the nature of a skill varies
according to whether it is exercised in relation to men or
women, a person does not commit a breach of section 44 by
exercising the skill in relation to one sex only, in
accordance with that person’s normal practice. This is the
only place in the Human Rights Act where sex is defined in
terms of men and women. (Note this exception specifically
refers to men and women).
Section
48 Exception in relation to
insurance
Insurance companies can offer or
provide life insurance policies, or other policies of
insurance, on different terms or conditions for each sex or
for persons with a disability or for persons of different
ages if, for example, the different treatment is based on
actuarial or statistical data, upon which it is reasonable
to rely, relating to life-expectancy, accidents, or
sickness. (Note if “sex” included “gender identity” it would
have said “all genders” not “each
sex”.)
Section 49 Exception
in relation to sport
In s49 it is lawful to
exclude one sex from participation in any competitive
sporting activity in which the strength, stamina, or
physique of competitors is relevant. This doesn’t apply to
coaches, umpires or referees, sports administrators, or
sporting activities for children under 12.
It is also
lawful to exclude someone from a competitive sporting event
or activity if that person’s disability is such that there
would be a risk of harm to that person or to others. It is
lawful to conduct competitive sporting events or activities
in which only persons with a particular disability or age
qualification may take part, like Masters events or Special
Olympics.
Section 55
Exception in relation to hostels, institutions,
etc
Hostels, or establishments such as a
hospitals, clubs, schools, universities, religious
institutions, or retirement villages, can provide
accommodation only for persons of the same sex, marital
status, or religious or ethical belief, or for persons with
a particular disability, or for persons in a particular age
group. This can include part of an
establishment.
Section 58
Exceptions in relation to establishments for particular
groups
Educational establishments for
students of one sex, race, or religious belief, or for
students with a particular disability, or for students in a
particular age group, can under s58 refuse to admit students
of a different sex, race, or religious belief, or
students.
There are other forms of discrimination
covered by the Act, such as racial and sexual harassment,
adverse treatment in employment of people affected by family
violence (mostly women, of course), and superannuation
schemes (mostly in relation to disability and age, though it
is also lawful to provide different benefits for members of
each sex).
Currently the Law Commission is preparing a
report to advise Minister of Justice Paul Goldsmith, due out
late next month, to provide advice as to whether “gender
identity and expression” and “innate variations of sex
characteristics” should be included as prohibited grounds
of discrimination. Although many government
agencies, local bodies and non-governmental organisations
believe it to be the case, “gender identity” is
not included in the prohibited grounds of
discrimination which are found in s21 of the Human Rights
Act.
The current prohibited grounds
are:
- sex, which includes pregnancy and
childbirth - marital status
- religious
belief - ethical belief
- disability, which
includes physical disability or impairment, physical
illness, psychiatric illness, intellectual or psychological
disability or impairment - age
- political
opinion - employment status, e.g. being unemployed; or
a beneficiary - family status
- sexual
orientation, which means a heterosexual, homosexual,
lesbian, or bisexual
orientation.
