19 February 2021
Speak Up For Women
By email to:
[email address]
Tēnā koe
,
Re. Speak Up for Women’s opinion/submission on the Human Rights Commission’s Prism report
Thank you for your email dated 22 October providing the Human Rights Commission (the
Commission) with a copy of Speak Up for Women’s feedback on our Prism report published in June
2020.
With my colleagues Commissioner Saunoamaali’i Dr Karanina Sumeo and
, we met
with you and
at our Wellington offices on 1 December to discuss your feedback.
Thank you for giving us your time. I also acknowledge your subsequent follow-up email on 8
December sharing information and links from the UK.
As we stressed in our meeting, the Commission is dedicated to supporting and promoting human
rights for everyone, including the rights of women and transgender persons. The Equal Employment
Opportunities Commissioner, Dr Sumeo, has a particular interest in promoting the economic, social,
and employment interests of women. You may wish to explore some of our past and current work in
the area of women’s rights, including th
e Tracking Equality at Work report and interactive too
l, our
documentary on the 125th anniversary of the suffrage movem
ent, calls to amend Equal Pay
legislation, and the recently announced
Inquiry into the Pacific Pay Gap. The Commission has also
been involved in other issues closely aligned with women’s rights, such as our submission to the Law
Commission regarding abortion law reform.1
We have considered your submission and comments in our face-to-face meeting, including your
concerns that women’s rights are being subsumed or usurped by the rights of transgender people.
We do not share the view that the rights of women and transgender people are at odds with each
other. Indeed, all people have the same human rights and freedoms and are born free and equal in
dignity and rights.
1 New Zealand Human Rights Commissio
n Submission of the Equal Employment Opportunities Commissioner on Abortion
Law Reform (2018)
Level 8, Vector Building, 44 The Terrace, PO Box 10424, Te Whanganui a Tara Wellington 6011 Aotearoa New Zealand
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As described at our face-to-face meeting - and in the report itself - the process to begin drafting
Prism began in 2018 with public consultation meetings open to all people with a diverse sexual
orientation, gender identity and expression, and sex characteristics (SOGIESC). These were publicly
advertised on our Facebook page (for Auckland,2 Wellington,3 and Christchurch4 respectively).
Through the feedback and information gathered, the Commission established clarity around the top
human rights issues for the communities we spoke to. These included the right to be free from
discrimination, the right to information and to recognition before the law, as well as rights to health,
education, and work. A chapter is devoted to each.
Each of the six chapters presents up to date information on the selected right as well as
recommendations to organisations, individuals, and decision makers to advance that right in New
Zealand. These recommendations came directly from the communities we spoke to and were not
constructed by the Commission itself. A best-practice process to researching and writing the report
was followed, using a consultative approach with affected communities. Extensive citations and
footnotes are included throughout the publication; many from the United Nations Independent
Expert on protection against violence and discrimination based on sexual orientation and gender
identity.
As noted in the Executive Summary and Conclusion, Prism did not seek to be exhaustive nor
detailed. Instead, it sought to provide an introduction to these six issues in the New Zealand context
and assist in providing a baseline understanding for future discussion and collaboration. For
example, the report does not cover housing, religion, adoption, conversion practices, insurance,
blood donation, justice and police, sport, and others.
The six issues explored in Prism are all linked to either the Universal Declaration of Human Rights,
International Covenant on Civil and Political Rights, or International Covenant on Economic, Social
and Cultural Rights. The long title to the Human Rights Act states that it is “An Act... to provide
better protection of human rights in New Zealand in general accordance with United Nations
Covenants or Conventions on Human Rights.” Human rights in Aotearoa New Zealand must also be
grounded on Te Tiriti o Waitangi and must be contextualised to reflect Te Ao Māori values. This
includes the pre-existing rights and mana motuhake of Māori as tangata whenua, the guarantee of
tino rangatiratanga and the right to self-determination. The report endeavours to honour this
approach.
You have provided feedback on the definitions used in the Prism report. Human rights law in New
Zealand is also recognised as a “constantly evolving process.”5 The meaning of law must be
ascertained from its text and in the light of its purpose, including indications provided in the
enactment (such as preambles and headings), and other relevant considerations.6 In short,
interpreting the words and provisions of the Human Rights Act broadly and generously, taking into
account international human rights law and jurisprudence (including work such as the
Yogyakarta
Principles), Te Ao Māori values, and the purpose of the legislation, is an appropriate valid approach.
2 https://www.facebook.com/events/2406807599545558/
3 https://www.facebook.com/events/181113329308853
4 https://www.facebook.com/events/1509054135815738/
5 Ministry of Justice Discussion Paper: Re-Evaluation of the Human Rights Protections in New Zealand (Ministry of Justice,
Wellington, October 2000) at [4].
6 Interpretation Act 1999, section 5.
2
Accordingly, the Commission has interpreted the Human Rights Act to include gender identity since
at least 2005. In 2006, the acting Solicitor-General wrote a legal opinion concluding that transgender
people were covered by the Human Rights Act.7 More specifically, the opinion found that the
prohibition of discrimination on the ground of sex in the Act includes prohibition on the ground of
gender identity, even without its express inclusion.
While drafting the report, we carefully considered international definitions and sources to inform
our work. We affirmed the definitions from the
Yogyakarta Principles as they are internationally
respected, cited, and drawn upon in the SOGIESC human rights space, including by UN bodies and
mechanisms. It is not a mischaracterisation to state that the Principles apply existing international
human rights law to sexual orientation, gender identity and expression, and sex characteristics as
you state in your submission; indeed, this is the long title to the document.8
As cited in footnote 20 of the Prism report, former member of the UN Human Rights Committee and
current Director of the EU Agency for Fundamental Rights, Michael O’Flaherty
, drew together the
jurisprudence to go alongside the Principles.9 The Statute of the International Court of Justice
confirms that judicial teachings from the most highly qualified publicists of various nations may be
applied as a subsidiary means for the determination of rules of law.10
I agree, the
Yogyakarta Principles are not legally binding. But it is common practice for international
non-binding norms to inform, deepen, and interpret legally binding commitments. There are
numerous examples of this, such as the
Siracusa Principles on the Limitation and Derogation
Provisions in the International Covenant on Civil and Political Rights (1985), the
Limburg Principles on
the Implementation of the International Covenant on Economic, Social and Cultural Rights (1987), as
well as the
Yogyakarta Principles (2007). This well-established normative and interpretive process is
consistent with the ‘living instrument doctrine’ which has been applied by important human rights
bodies, such as the European Court of Human Rights. The New Zealand Courts as well as the Human
Rights Review Tribunal have similarly had regard to non-binding international human rights
statements when interpreting New Zealand law.11
Our work in the Prism report was also informed by non-Western understandings of sex and gender,
including Te Ao Māori. You have stated that a belief in an innate gender identity is a relatively new
concept, and that we have conflated terms in the Human Rights Act with “new niche cultural
concepts like gender diverse, non-binary, pangender, etc”. As we specified in the report, Indigenous
peoples with diverse sexual orientations, gender identities and expressions, and sex characteristics
have existed throughout history in innumerable cultures, populations and religions, including in the
Pacific. Diverse identities, expressions and practices were accepted as a normal part of Te Ao Māori
prior to the colonisation of Aotearoa. Gender diversity and gender expression beyond the binary is
7 Cheryl Gwyn
“Crown Law opinion on transgender discrimination” (23 August 2006).
8 The Yogyakarta Principles: Principles on the application of international human rights law in relation to sexual orientation
and gender identity (Geneva, 2007)
9 Professor O’Flaherty was previously Established Professor of Human Rights Law and Director of the Irish Centre for
Human Rights at the National University of Ireland. He has served as Chief Commissioner of the Northern Ireland Human
Rights Commission, Member of the UN Human Rights Committee, and head of a number of UN Human Rights Field
Operations. He was also rapporteur for the development of the
Yogyakarta Principles.
10 Statute of the International Court of Justice, Article 38(1)(d). 11 See, for example,
Wall v Fairfax [2017] NZHRRT 17 at [140] and [147] or
R v Whatarangi Rawiri (2002), High Court at
Auckland, T014047, per Fisher J at [7].
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not a new concept, nor is it a niche cultural concept; rather, it is reflected across a wide range of
cultures and societies.
We have considered your feedback on the term “assigned at birth.” In our view, this term reflects
the process by which a baby’s sex is recorded on their birth certificate at or soon after birth.
Although some mothers and pregnant people may get information about their baby’s sex before
birth (usually through an ultrasound visual identification), the sex is not and cannot be formally
recorded until the baby is born and a birth certificate is issued.
Much of your original submission details your concerns about women in sport. As noted above,
sporting rights are not addressed substantively in the Prism report. The report mentions the
gendered and binary organisation of some sports, and the overt homophobia, biphobia, and
transphobia pervasive in those spaces. This statement was made with reference to an international
study on the prevalence of homophobia in sporting codes.12
You have commented that the Prism report is “at odds” with section 49 of the Human Rights Act.
Section 49(1) permits the exclusion of people of one sex from participating in a competitive sporting
activity in which the strength, stamina, or physique of competitors is relevant. The exception permits
but does not require excluding competitors from sporting activity. Indeed, the onus is on those
wanting to exclude trans women from women’s sport to make the case for doing so. This exception
does not apply to non-competitive sport or recreation, or to competitive sport where a player’s
strength, stamina or physique does not give them a competitive advantage.
The application of section 49 needs to be determined on a case by case basis. Transgender people,
like all people, have the right to be free from discrimination on the basis of their gender identity and
expression. A restriction on a human right (for example the right not to be discriminated against) can
only be justified to the extent that it is necessary and proportionate. If the Commission received an
individual complaint of sex or gender discrimination in sport, we would work with the individual and
the organisation to discuss the perceived discrimination and whether it is reasonable for the
organisation to apply section 49 in that particular situation. This is the case for all ‘positive
discrimination’ provisions contained within the Act.
The Human Rights Commission deplores violence against lesbian, gay, bisexual, transgender, and
intersex people based on their sexual orientation, gender identity or expression, and sex
characteristics. We appreciate you raising the concerns regarding the placement of transgender
prisoners. We work with the Department of Corrections to ensure that the rights of trans prisoners
are equally upheld; all people deserve the right to safety in prison. We have carefully studied your
sources from the UK and elsewhere, but consider that these sources do not support the need for
trans prisoners to be segregated from others as a general rule. We strongly object to generically
characterising trans women as a safety risk to cisgender women.
Thank you very much for contacting us with your feedback. The Commission is immensely proud of
the Prism report. We remain steadfast in our support of trans people, and women, and trans
women, and stand behind the work we produced through a best practice, consultative approach. We
are currently considering a future work programme arising from the Prism report. If we develop
12 Erik Denison and Alistair Kitchen
“Out on the fields: The first international study on homophobia in sport” (Australian
Sports Commission, Canberra, 2015).
4
further reports or research, we will again engage with affected communities on a transparent and
consultative basis. Of course, you would be more than welcome to provide your comments on any
future work.
In the interests of full transparency, we respectfully invite you to share this correspondence on your
website alongside your submission and subsequent email to us.
Ngā mihi,
Paul Hunt
Chief Commissioner | Te Amokapua
New Zealand Human Rights Commission | Te Kāhui Tika Tangata
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