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Transgender and non-binary people in New Zealand face discrimination in several aspects of their lives. The law is unclear on the legal status of discrimination based on gender identity, and also for intersex people.[1]
The International Commission of Jurists and the International Service for Human Rights in 2007 created the Yogyakarta Principles to apply international human rights law to gender identity and sexual orientation. The first and arguably most important is that human rights are available to all humans, regardless of gender identity, and that states should amend legislation "to ensure its consistency with the universal enjoyment of all human rights."[2] This report suggested that transgender people were "one of the most marginalised groups" in New Zealand, leading the Human Rights Commission to publish a comprehensive inquiry entitled To Be Who I Am in 2008, which outlined some of the concerns listed below.[3] Transgender rights organisations carry out over 1,300 individual peer supports each year, with many of these addressing breaches of universal human rights.[4] These concerns are particularly important considering that the discrimination and exclusion has been shown to increase the risk of mental health issues and suicide.[5]
Currently, the Human Rights Act 1993 does not explicitly prohibit discrimination on the basis of gender. Whilst it is believed that gender identity is protected under the laws preventing discrimination on the basis of either sex or sexual orientation,[6] it is not known how this applies to those who have not had, or will not have, gender reassignment surgery.[1] Some overseas courts have determined that transgender people are covered by prohibitions on discrimination based on sex, but there is also international case law suggesting it is not.[7] Even if it is, it is unlikely to apply to transgender people who have not or will not have gender reassignment surgery.[8] Likewise, placing gender identity under the prohibitions on the grounds of sexual orientation is problematic. While there is some inconsistent international case law, it has been noted that gender identification and sexual orientation are too unrelated for this to be suitable.[9]
Gender reassignment surgery is available in New Zealand, though there are cost barriers to accessing such surgery. New Zealanders are legally permitted to apply to change the designation of their gender on government documents. The legalisation of same-sex marriage in 2013 had the effect of removing the requirement to divorce if one was already married.
- ^ a b Human Rights Commission: “Human Rights in New Zealand Today – New Zealand Action Plan for Human Rights. August 2004. P.92
- ^ The Yogyakarta Principles: Principles on the Application of International Human Rights Law in Relation to Sexual Orientation and Gender Identity. 2007 p.10
- ^ Human Rights Commission: To Be Who I Am: Report of The Inquiry into Discrimination Experienced by Transgender People. January 2008 at 1.1.
- ^ "2020 Annual Report". Gender Minorities Aotearoa. 3 August 2021. Retrieved 5 September 2021.
- ^ Rainbow Youth, Rainbow Communities and the New Zealand Suicide Prevention Action Plan: Briefing Paper for Associate Minister of Health Todd McClay August 2013 p. 3
- ^ Human Rights Act 1993 s21(1)(m)
- ^ Heike Polster, “Gender Identity as a New Prohibited Ground of Discrimination” New Zealand Journal of Public and International Law. Vol 1 No 1 November 2003 at p180-181
- ^ Heike Polster, “Gender Identity as a New Prohibited Ground of Discrimination” New Zealand Journal of Public and International Law. Vol 1 No 1 November 2003 at p182.
- ^ Heike Polster, “Gender Identity as a New Prohibited Ground of Discrimination” New Zealand Journal of Public and International Law. Vol 1 No 1 November 2003 at p183.