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Decades on ... still fighting for clarity

Wed 9 Jul 2014 In: Features View at NDHA

The derailing of the latest move to clearly and specifically ensure protection from discrimination on the basis of gender identity has been met with a giant sigh of frustration. Today, ironically 28 years since Homosexual Law Reform passed, we’ve put together a round-up of what’s just happened and a look at the long history of roadblocks advocates have faced. Why isn’t it specifically in the Human Rights Act already? Katherine O'Regan has apologised to transgender people for not including their protection in changes to the Human Rights Act in 1993. At a National Marriage Equality Conference at Parliament two years ago, former National MP Katherine O’Regan explained why precise reference to gender identity was not included in changes to the Human Rights Act in 1993 – which outlawed discrimination on the grounds of sexual orientation and HIV status. “We did discuss it a lot, but we knew we were only going to get this far this time. We knew the House would only go so far and rather than lose it all, we had to lose something,” O”Regan explained. The former MP said she wished it had been included and expressed her hope it would be pushed through soon. She expressly apologised to transgender people for not including them in the '90s. In 2004, then-Labour MP Georgina Beyer took up the cause. She drafted a bill which would have provided for "gender identity" to be included as one of the prohibited grounds of discrimination in the Human Rights Act. "Explicit reference to transgender people, in terms of the words gender identity, is necessary to put the issue beyond doubt,” the notes with the Bill stated. "Explicit reference to gender identity provides transgender people with the ability to point to a clear statement of law indicating that discrimination against them is prohibited, thereby increasing the chances of preventing such discrimination from ever taking place." Georgina Beyer It was drawn from the ballot, but put on the backburner, despite being Labour Party policy in their 1999 and 2002 election manifestos. Labour Whip Tim Barnett said at the time that it was likely the bill would be withdrawn, continually delayed or defeated - with pundits blaming the party’s fear of anything else ‘controversial’ in the climate of civil unions and prostitution reform. However, in 2006 Beyer withdrew it herself, based on a legal opinion from the acting Solicitor-General suggesting transgender people were already protected under the Human Rights Act. Attorney-General Michael Cullen said that opinion suggested transgender people would be covered by clauses aimed at preventing "sex discrimination" under the Human Rights Act. Beyer said the opinion achieved the aims of her bill. "Until now there was no authority supporting this view," she said. "Transgender people do experience discrimination in New Zealand. My bill sought to have transgender people protected from being kicked out of their houses and jobs just because of their sex, in the same way all other New Zealanders are protected." At the time the Human Rights Commission welcomed the confirmation that transgender people were covered by anti-discrimination laws regardless of whether they had had reassignment surgery or not. However, To Be Who I Am, the report on the wide-ranging Transgender Inquiry by the Human Rights Commission found the extensive discrimination, stigmatisation and marginalisation of transgender and intersex people, and many submitters called for the Human Rights Act to be amended to make it clear that such discrimination was not legal. The HRC stated that New Zealand’s legal framework was unclear and confusing for trans people, who “would be better protected by a specific reference to ‘gender identity’ in the Human Rights Act so that a consistent, non-discriminatory, definition of a person’s sex exists across all laws”. The Clark government publicly committed to implementing the recommendations of the Inquiry and allocated this task to the Minister for Human Rights matters, Lianne Dalziel. However the Labour government was voted out in 2008 and the National government has since maintained altering the Human Rights Act is “unnecessary” due to the 2006 Crown Law opinion. Louisa takes up the cause Louisa Wall has taken up the cause At the beginning of this year Labour’s marriage equality championing MP Louisa Wall set her sights on getting gender identity specifically included in the Human Rights Act. During Auckland Pride she revealed she had written to Justice Minister Judith Collins asking her to agree to add gender identity as a prohibited ground, should the Human Rights Act be amended this year. Wall urged Collins to do this if a Statutes Amendment Bill was introduced – the Bill is designed to deal with short, technical and non-controversial amendments to the law. A Statutes Amendment Bill appeared and Wall’s request had been ignored, so the Labour MP put forward a Supplementary Order Paper including it herself. The community rallied to make submissions on why having gender identity clearly and specifically covered was so important. This week submitters received an email saying the Statutes Amendment Bill was not “the right vehicle for this amendment”. Wall has told Daily News Collins had two reasons for not allowing her move to proceed – she both didn’t think changing the wording was necessary, but she also thought discussing it would be controversial. She points out that in essence, according to Collins, ‘gender identity’ is already included in the Human Rights Act. "I believe the Minister has conveniently contradicted herself and let down the community and her own department, the Human Rights Commission,” Wall has since responded. "Having stated gender identity is already included it is ridiculous to decline to support the amendment that reflects that because it is controversial. The Minister is pandering to people who want to revisit homosexual law reform and who erroneously think gender identity is not included. For those people, the inclusion of gender identity as a prohibited ground of discrimination is controversial." Wall could perhaps be referring to the likes of Bob McCoskrie from the group ‘Family’ First, who sent out repeated, but largely ignored, press releases about her move, channelling right wing American fundamentalists with his misleading claim it was a ‘bathroom bill’ and that Wall was trying to avoid public debate – despite the open call for submissions. He made transphobic claims about the use of gyms, swimming pools and toilets and ‘a person’s actual biological sex’, which can be best summed up in the uninformed and vicious statement: “Those with gender dissatisfaction must have the same rights as all New Zealanders, but should not be given special rights which place others at risk.” God knows what on earth ‘gender dissatisfaction’ is supposed to be … So where are we now? Kelly Ellis TransAdvocates founder Kelly Ellis, herself a Labour Party candidate, believes as things stand, trans people are basically “on the outside looking at those lucky people who have express protection”. She says: "This is an international disgrace. At a time when our poor compliance has been noted by the United Nations, here we are as a nation, thumbing our noses at them and reminding people like me that some are more equal than others." Ellis is referring to a January update Judith Collins provided to the United Nations Human Rights Council in Geneva. A document she presented made the Human Rights Commission’s view on whether discrimination based on gender identity is prohibited in New Zealand clear, however it again stated the Government’s view that it’s already prohibited under the Human Rights Act as sex discrimination. Ellis is also a lawyer who has had numerous transgender clients. She says stating transgender people are covered in the Human Rights Act under the grounds of ‘sex’ is arguable either way. "Human rights laws are often aspirational and provide a touchstone for those involved in interpreting the law. I always quote the Human Rights Act when I’m representing trans prisoners. A section of my submissions addresses this and argues that we are included under the definition. "No one else has to argue they are included under the Human Rights Act. Trans people are on the outside looking at those lucky people who have express protection.” Ellis believes the lack of action is an international disgrace. “At a time when our poor compliance has been noted by the United Nations, here we are as a nation, thumbing our noses at them and reminding people like me that some are more equal than others." "When faced with questions by the United Nations, the Collins declared that our laws cover discrimination on the grounds of gender identity,” Louisa Wall says. “When asked to merely support clarification of that fact, the Minister suddenly determines it is not necessary and controversial." The good news for advocates is that Wall is not giving up. She says Collins’ lack of support for her move is an insult to the community and leaves trans and intersex people as “an invisible group” under our discrimination laws. She promises under a Labour government, the amendment to explicitly refer to "gender identity" will be part of the party’s legislative agenda. Implementing all the outstanding recommendations from To Be Who I Am was among the rainbow policy proposals endorsed at a Labour Party conference last year – and Rainbow Labour’s pre-election manifesto is due out soon. "The positive outcome of this process is that it has mobilised the community and I look forward to working with the community to achieve specific recognition in the law that gender identity is a prohibited ground of discrimination,” Wall says. Ellis agrees Collins is swimming against the tide. “She might have succeeded this time, but we’re going to come again and again until we succeed.” Judith Collins is yet to respond to Did you make a submission on the bid to have 'gender identity' specifically included in the Human Rights Act? We think they should be heard. Send them to so we can publish them. Jacqui Stanford - 9th July 2014    

Credit: Jacqui Stanford

First published: Wednesday, 9th July 2014 - 3:00pm

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