Ref: 224791
29 August 2023
Sam
Via FYI.org.nz
Tēnā koe Sam
Response to your request for Official Information
On 18 July 2023, you requested the following information from the Human Rights
Commission (“the Commission”) under the Official Information Act 1982 (“OIA”):
Please provide me with all policies, information, and internal and external
communications regarding the use of public bathrooms by transgender people,
especially with their ability to elect whether to use a male or female bathroom
depending on what they identify as.
We address each aspect of your request below.
Request for information
In response to your request for information regarding the use of public bathrooms by
transgender people, we refer you to the following:
• The Commission’s report
PRISM: Human Rights issues relating to Sexual
Orientation, Gender Identity and Expression, and Sex Characteristics
(SOGIESC) in Aotearoa New Zealand (released June 2020). In particular, the
matter is discussed on pages 18, 50 and 58 to 59 of this report.
• Information contained in the following FAQ’s on the Commission’s website:
o
Can I use public toilets and changing rooms that align with my gender?
o
Can my school stop me using the toilets and changing rooms I feel most
comfortable in?
• The Commission’s submission on
Petition of Maggie Ross: Provide Funding for
all Schools to have Gender-Neutral Bathrooms (21 April 2023) – copy
attached.
Request for policies
In response to your request for policies about the use of public bathrooms by
transgender people, we confirm that the Commission does not hold any information
relevant to your request. As the Commission’s offices are not open to the general
public, any internal policies do not relate to ‘public’ bathrooms. We must therefore
decline this aspect of your request on the basis that the information you have requested
is not held by the Commission.1
Request for external correspondence
In response to your request for external communications regarding the use of public
bathrooms by transgender people, we have
attached an email chain between
1 OIA, s 18(g).
Stantec House, Level 1, 10 Brandon Street, Wellington
PO Box 10424, Wellington Central, Te Whanganui a Tara Wellington, Aotearoa New Zealand
Waea Telephone +64 4 473-9981 Waea Whakaahua Facsimile +64 9 377-3593
Infoline Toll free 0800 496 877 | TTY [email address] | www.tikatangata.org.nz
Commission staff and Parliament’s Petitions Committee which addresses this matter.
We note that we have applied redactions to the names of staff members from the
Commission and the Petitions Committee in order to protect their individual privacy.2
We also note:
• Over the last five years (since 1 January 2018), the Commission’s frontline
Human Rights Information and Support Services Team has received
three complaints alleging unlawful discrimination on the grounds of sex,3 that
relate to the use of bathrooms by transgender people.
• The Commission’s Senior Human Rights Advisor – Sexual Orientation, Gender
Identity and Expression, and Sex Characteristics (SOGIESC) has also
searched his email inbox and found two enquiries received from members of
the public relating to the use of public bathrooms by transgender people.
Other than the summary provided above, the Commission has made the decision to
decline your request relating to providing copies of external communications on the
following grounds:
• To protect the privacy of natural persons (OIA, s 9(2)(a)); and
• To protect information which is subject to an obligation of confidence, where
disclosure would be likely to prejudice the future supply of similar information
(OIA, s 9(2)(ba)).
We have made this decision because our dispute resolution processes, including all
enquiries and complaints we receive from individuals, are treated as confidential.4 We
consider it is in the public interest that members of the public are assured that the
correspondence they have with Commission staff as part of our enquiries and
complaints service will be treated as confidential, and that such confidence will only be
waived with their free, prior and informed consent. The continued supply of such
information from members of the public is essential for the Commission to discharge
its statutory functions under the HRA to receive enquiries and complaints from
members of the public about discrimination and matters affecting human rights in
Aotearoa.5
Request for internal correspondence
We have made the decision to decline your request for copies of internal
communications regarding the use of public bathrooms by transgender people, on the
following grounds:
• To maintain the effective conduct of public affairs through the free and frank
expression of opinions between Commission staff and representatives in the
course of their duties (OIA, s 9(2)(g)(i)); and
• To maintain legal professional privilege (OIA, s 9(2)(g)(h)).
The internal communications which the Commission holds in relation to this matter
involve the sharing of opinions and advice between Commission staff, including
members of the Commission’s legal team. The Commission considers there is a strong
public interest in ensuring Commission staff receive robust and frank advice in the
process of forming a public position on an issue, and that legal professional privilege
be maintained.
2 OIA, s 9(2)(a).
3 Section 21(1)(a) of the Human Rights Act 1993 prohibits discrimination on the basis of sex,
which has been interpreted to include gender identity.
4 See information on o
ur website. 5 See Human Rights Act 1993, s 5 and Part 3.
Alternative avenues
If you are not satisfied with this response, under the Official Information Act you are
entitled to complain to the Ombudsman’s Office. Information about how to make a
complaint is available at
www.ombudsman.parliament.nz or on freephone 0800 802
602.
Nāku noa, nā
Philippa Moran Kaitohu Ture | Legal Advisor
New Zealand Human Rights Commission | Te Kāhui Tika Tangata
