GAYNZ.COM ARCHIVED ARTICLE
Title: Where the Human Rights Act is failing us Credit: Chris Banks; Warren Lindberg Features Friday 18th March 2005 - 12:00pm1111100400 Article: 665 Rights
 
Thought the Human Rights Act 1993 could protect you from all forms of abuse as a GLBT person? Think again. Last month, GayNZ.com reported the case of a lesbian couple in the Auckland suburb of Mt Albert, who moved after experiencing harassment at the hands of their Destiny Church-supporting neighbours. The harassment began when Mt Albert resident Kate Simpson and her female partner woke up to find their neighbours displaying a large hand-written poster, directed at their kitchen window, reading “Desinty [sic] Church: vote no to lesbians: It's a sin”. Simpson told the NZ Herald they see the poster “every morning when we wake up or sit in our lounge to watch TV”. The couple were also subject to abuse from children visiting the residence, making rude gestures and yelling “I hope you burn in hell”, all in front of parents who did nothing to curb the behaviour. Simpson and her partner made complaints to the offices of their local MP and community constable, but did not receive a response. Who could help them? Could anything be done? GayNZ.com approached the Human Rights Commission to see if the couple – and anyone else finding themselves in a similar situation – would have recourse to complain under the Human Rights Act. ACT justice spokesman Stephen Franks, in a shocking disregard for the welfare of the GLBT community, attempted this week to repeal all protections for gays and lesbians under the Human Rights Act. But, according to the Human Rights Commission, even with the law as it stands we're not quite as protected as we thought we were... Human Rights Commissioner Warren Lindberg writes: The sign in their neighbour's window "Vote No To Lesbians - It's a Sin" that has offended a lesbian couple in Auckland is not unlawful under the Human Rights Act. The only bases on which the Act empowers the Human Rights Commission to take action regarding offensive language are race (sections 61, 63 and 131) and sexual harassment (section 62). Even these must meet a range of other criteria. Nevertheless, all people enjoy an equal right to security, and the general law of New Zealand does protect this right. Language which is threatening, abusive or insulting on the ground of race must also be “likely to excite hostility against or bring into contempt” the person or persons against whom it is directed. Language of a sexual nature that is unwelcome or offensive may constitute sexual harassment, but must also be “repeated or of such a significant nature that it has a detrimental effect on the person” to whom it is directed. A similar definition applies to racial harassment. But these sections apply only to language used in a public arena such as employment, education, or access to places, goods and services, not in the private sphere of one's own property. Neither sexual orientation nor religion is covered by these prohibitions. Although the sign refers to lesbians, it isn't “of a sexual nature” so would not be considered sexual harassment. On the other hand, if its placement intends to cause the women to fear for their safety, it could be considered harassment under the Harassment Act 1997, and taken up with the Police. The definition of harassment includes making contact and bringing offensive material to their attention in any way that makes them fear for their safety. Offensive language regarding religion is no more protected by the Human Rights Act than sexual orientation, although sometimes it is difficult to differentiate between religion and race (e.g. anti-Semitism). In fact, the offended lesbian women are equally at liberty to place a sign in their window that is equally offensive to their neighbours. This issue is central to the Government Administration Committee's inquiry into “hate speech” – whether to extend legislative provisions to include other grounds (notably religion and sexual orientation) or whether freedom of expression provides a better solution to cases such as this by permitting the offended person(s) to say what they like in return. There can be no doubt that derogatory language directed at lesbian, gay and transgender people does real harm to us individually and collectively. However, limits on freedom of expression may also limit our right to defend ourselves. Hence laws limiting freedom of expression require a high level of proof of a harmful outcome. Although the Human Rights Act does not protect the women in this particular case on the ground of their sexual orientation, whether the sign can be considered to be directly harmful to them as ordinary citizens may be pursued under the Harassment Act. Chris Banks; Warren Lindberg - 18th March 2005    
 
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