4
Hon Lianne Dalziel Associate Minister of Justice
Government Response to Human Rights Commission's Transgender Report
Date
12 March 2008
File reference
HUM-16-02
Action Sought
Timeframe/Deadline
Note the key findings and recommendations of the Human
As priorities al ow.
Rights Commission’s Transgender Report;
Direct the Ministry of Justice to coordinate the assessment and
implementation of the Transgender Report’s recommendations;
Agree that section 21(1)(a) of the Human Rights Act 1993 does
not require amendment to include “gender identity” within the
definition of “sex” as a prohibited ground of discrimination;
Agree that no formal Government response to the Transgender
Report is necessary.
Contacts for telephone discussion (if required)
Telephone
1st
Name
Position
(work)
(a/h)
contact
Stuart Beresford
Manager, Bil of
✓
[ s 9(2)(a) ]
Rights/Human Rights
(Public Law Group)
Nicholai Anderson
Legal Adviser, Bil of
Rights/Human Rights
(Public Law Group)
Minister’s office to complete
Noted
Approved
Overtaken by events
Referred to: __________________________________
Seen
Withdrawn
Not seen by Minister
Minister’s office comments
HUM-16-02
Government Response to Human Rights Commission's Transgender Report
PO Box 180, Wellington, New Zealand
Telephone: +64-4 918 8800 Fax: +64-4 918 8820
www.justice.govt.nz
12 March 2008
Hon Lianne Dalziel Associate Minister of Justice
Government Response to Human Rights Commission's Transgender Report
Purpose
1.
This briefing:
•
summarises the Human Rights Commission’s Report of the Inquiry into
Discrimination Experienced by Transgender People, “To Be Who I Am”;
•
seeks your agreement on the initial Government response to the report’s
recommendations;
•
attaches a draft letter to the Chief Human Rights Commissioner, Rosslyn
Noonan; and
•
attaches draft letters to your Ministerial col eagues.
Executive summary
2.
The Human Rights Commission (“the Commission”) released its Report of the Inquiry
into Discrimination Experienced by Transgender People in January 2008.
3.
The Report highlights a disproportionately high incidence of unlawful discrimination
being suffered by transgender people, and highlights four areas for immediate attention:
•
increasing participation of trans people in decisions that affect them;
•
strengthening the legal protections making discrimination against trans people
unlawful;
•
improving access to health services, including gender reassignment services;
and
•
simplifying requirements for change of sex on a birth certificate, passport, and
other documents.
4.
The extent of col aboration required to assess and implement the Commission’s
recommendations requires a degree of oversight and coordination by the Ministry of
Justice.
5.
Existing protection against discrimination for transgender people under the definition of
“sex” in section 21(1)(a) of the Human Rights Act 1993 means that an amendment to
include “gender identity” would be largely symbolic. The objectives of such a change
could feasibly be achieved through an education and awareness programme.
6.
A formal response to the Commission’s Report is likely to be publicly divisive and time
consuming. As many of the recommendations can be readily addressed, it is proposed
that work simply gets underway. More complicated recommendations can be subjected
to detailed analysis.
HUM-16-02
Government Response to Human Rights Commission's Transgender Report
PO Box 180, Wellington, New Zealand
Telephone: +64-4 918 8800 Fax: +64-4 918 8820
www.justice.govt.nz
Background – Transgender Inquiry
7.
The Commission’s Inquiry into the Discrimination Experienced by Transgender People
(“the Inquiry”) commenced in 2006, and focused on three areas: experiences of
discrimination, access to health services (including but not limited to gender
reassignment), and barriers to legal recognition of gender status.
8.
Over 18 months, the Inquiry met with a diverse range of people generical y identifiable
as “trans people” – having in common the struggle to come to terms with who they are,
to have others accept them, and to be able to live fulfil ed lives in the sex they know
themselves to be. The Inquiry also consulted with community groups, health
professionals, academics and government agencies, including the Ministry of Justice.
Key findings
9.
The Report of the Inquiry (“the Report”) was released in January 2008, and made the
fol owing key findings:
•
a disproportionately high incidence of unlawful discrimination has been suffered
by trans people;
•
the population of affected people is not readily ascertainable;
•
intersecting factors operate to marginalise trans people and their families,
compromise their safety, affect their access to housing, create barriers to finding
and retaining employment, place restrictions on their participation in public life
and jeopardise their navigation of the criminal justice system;
•
the wider community has little or no knowledge about the issues affecting trans
people; and
•
the marginalisation of trans people is exacerbated by either the absence of
policies and practices that recognise their specific needs, or the development of
such policies without their involvement.
Principal recommendations
10.
The Report makes the fol owing principal recommendations for action by government
agencies:
All government agencies
•
increase consultation and col aboration with trans people on issues that affect
them;
•
review policies and practices to ensure these do not discriminate against, and
are inclusive of, trans people; and
•
consider when it is necessary to gather sex data and, where necessary,
ensuring categories for data col ection reflect the diversity of trans people.
Ministry of Justice
•
amend the Human Rights Act 1993 to secure protection from discrimination on
the grounds of ‘gender identity’;
•
record information about crimes against trans people including crimes motivated
by a victim’s gender identity; and
HUM-16-02
Government Response to Human Rights Commission's Transgender Report
2
•
investigate options for disclosure of previous names where a Police clearance is
needed for a trans person.
Other specific government departments
•
amend the Births, Deaths, and Marriages Registration Act 1995 (section
28(3)(c)(i)(B)) to ensure trans people are ful y recognised, and improve
consistency in government policies relating to change of sex details on official
documents (Department of Internal Affairs); and
•
provide clear information about gender reassignment services available within
each district health board, and develop treatment pathways and agreed
standards of care (Ministry of Health).
Actions to date
11.
Ministry of Justice (“the Ministry”) officials have conducted meetings with affected
government agencies to gauge reactions to the recommendations.
12.
Several agencies have already taken steps that wil address specific recommendations.
For example, a draft Supplementary Order Paper (“SOP”) to the Births, Deaths, and
Marriages Registration Amendment Bil is due to be considered by the Cabinet
Legislation Committee on Thursday, 20 March 2008. This SOP would address a
specific recommendation of the Inquiry by ensuring that the Family Court is able to
make declarations as to sex for New Zealand citizens born overseas.
13.
A number of recommendations, however, can only be achieved through inter-agency
col aboration. We, therefore, suggest that the Ministry takes a coordination and
oversight role, ensuring that agencies address the recommendations affecting them
and bringing agencies together for this purpose.
Ministry specific recommendations
14.
The Ministry has also undertaken preliminary analysis of the three Ministry specific
recommendations, and, in particular, the recommendation that the Human Rights Act
1993 (“HRA”) be amended to secure protection from discrimination on the grounds of
‘gender identity’.
15.
The proposed law change is identical to that put forward in the Human Rights (Gender
Identity) Amendment Bil (“the Bil ”) in 2006. The Bil was ultimately withdrawn fol owing
the Attorney-General obtaining an opinion from the Crown Law Office stating that there
was currently no reason to suppose that “sex discrimination” would be construed
narrowly to deprive transsexuals of protection under the HRA. The Attorney-General
subsequently stated that due to the existing protection, the HRA did not require
amendment.
16.
The Report notes that there is limited awareness of the Crown Law Office opinion
among government agencies, and recommends that the definition of ”sex” in section
21(1)(a) of the HRA be amended to specifical y include gender identity, “for the
avoidance of any doubt”.
17.
An amendment to the definition of sex would send a clear signal that discrimination
against trans people is not to be tolerated, but its effect is likely to be largely symbolic.
The Ministry considers that an education and awareness programme could achieve the
same objectives, and does not consider a law change to be necessary at this time.
HUM-16-02
Government Response to Human Rights Commission's Transgender Report
3
18.
The Ministry considers that the recommendations to record information about crimes
against trans people, and investigate options for disclosure of previous names where a
Police clearance is needed for a trans person are likely to be achievable without
legislative change, and has begun investigating the possibility of administrative reforms.
Next Steps
19.
Having met with various affected government agencies and the Human Rights
Commission, the Ministry recommends that no formal Government response to the
report is necessary. A formal response is likely to be publicly divisive and time
consuming. While many recommendations are uncontroversial and can be readily
achieved, others wil require significant analysis and col aboration.
20.
The Ministry, therefore, recommends that it take a coordination and oversight role,
working with affected government agencies and the Human Rights Commission to
ensure that the recommendations are given due weight. If you agree, a round table
meeting wil be scheduled in the coming weeks.
21.
We also recommend that you write to the Chief Human Rights Commissioner, Rosslyn
Noonan, commending the work of the Inquiry and advising that the Ministry wil
coordinate the assessment and implementation of the recommendations. A draft letter
is attached for your perusal.
22.
Draft letters to your Ministerial col eagues commending the Report and requesting the
support of their respective departments are also attached. We note that you may also
wish to raise this matter as an oral item in Cabinet, as the Government’s response to
the Report is likely to generate public interest.
Recommendations
23.
It is recommended that you:
23.1.
Note the key findings and recommendations of the Human
Rights Commission’s Transgender Report;
23.2. Direct the Ministry of Justice to coordinate the assessment
YES / NO
and implementation of the Transgender Report’s
recommendations;
23.3. Agree that section 21(1)(a) of the Human Rights Act 1993
YES / NO
does not require amendment to include “gender identity”
within the definition of “sex” as a prohibited ground of
discrimination;
23.4. Agree that no formal Government response to the
YES / NO
Transgender Report is necessary;
23.5. Sign the attached letter(s)
YES / NO
- to the Chief Human Rights Commissioner commending
the work of the Inquiry;
- to your Ministerial col eagues requesting the support of
their respective departments;
HUM-16-02
Government Response to Human Rights Commission's Transgender Report
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23.6. Consider whether to raise this matter as an oral item in
Cabinet
Stuart Beresford
Manager, Bil of Rights/Human Rights
Public Law
APPROVED / SEEN / NOT AGREED
__________________________________
Hon Lianne Dalziel
Associate Minister of Justice
Date:
Attachments
Letter to the Chief Human Rights Commissioner, Rosslyn Noonan;
Letters to your Ministerial col eagues.
HUM-16-02
Government Response to Human Rights Commission's Transgender Report
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