Transgender rights in New Zealand

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Georgina Beyer, the first New Zealand transgender member of parliament

The Human Rights Commission noted in its 2004 report on the status of human rights in New Zealand that transgender, and non-binary people in New Zealand face discrimination in several aspects of their lives, however the law is unclear on the legal status of discrimination based on gender identity, and also for intersex people.^[1]

Currently, the Human Rights Act 1993 does not explicitly prohibit discrimination on the basis of gender. Whilst it is believed that gender identity is protected under the laws preventing discrimination on the basis of either sex or sexual orientation,^[2] it is not known how this applies to those who have not had, or will not have, gender reassignment surgery.^[1] Some overseas courts have determined that transgender people are covered by prohibitions on discrimination based on sex, but there is also international case law suggesting it is not.^[3] Even if it is, it is unlikely to apply to transgender people who have not or will not have gender reassignment surgery.^[4] Likewise, placing gender identity under the prohibitions on the grounds of sexual orientation is problematic. While there is some inconsistent international case law, it has been noted that gender identification and sexual orientation are too unrelated for this to be suitable.^[5]

Overview

The International Commission of Jurists and the International Service for Human Rights in 2007 created the Yogyakarta Principles to apply international human rights law to gender identity and sexual orientation. The first and arguably most important is that human rights are available to all humans, regardless of gender identity, and that states should amend legislation “to ensure its consistency with the universal enjoyment of all human rights.”^[6]

This report suggested that transgender people were “one of the most marginalised groups” in New Zealand, leading the Human Rights Commission to publish a comprehensive inquiry entitled To Be Who I Am in 2008, which outlined some of the concerns listed below.^[7] These concerns are particularly important considering that the discrimination and exclusion has been shown to increase the risk of mental health issues and suicide.^[8]

Cultural discrimination

Discrimination on the basis of gender identity can also be cultural discrimination, as in New Zealand, several cultures have a history of differences in gender identity. Transgender Māori people- Tangata ira tane (male who was born female), and whakawahine, Hinehi, and Hinehua (female who was born male) – were observed by the first European explorers to New Zealand.^[9] Cultures which accept transgender people can create positive environments for its members to determine their own gender identity.^[10] Transgender people from these communities may be aware of the potential to transition earlier, and may be less likely to require or desire genital surgery.^[11] However, there are also general concerns that Māori patients have reduced health access and receive fewer referrals and medical tests.^[12]

Discrimination in the workplace

Discrimination in the workplace particularly relates to access to employment, job retention and safety in the workplace.^[13] An inability to find a job can cause difficulties with having enough money, but also can cause a person to feel disconnected from the world.^[14] Transgender people have reported harassment, violations of privacy, and unfair dismissals at the workplace.^[15]

In light of the findings of the Human Rights Commission, the Department of Labour has issued a guide to transgender people in the workplace. It specifies that unless gender identity affects the ability to perform a job, employers or prospective employers are not permitted to ask if a person is transgender. Discrimination in the workplace on the basis of gender identity can be referred to the Human Rights Commission.^[16]

The right to healthcare, and protection from discrimination on basis of health

The health issues faced by transgender and non-binary people are particularly complex. Many general practitioners in New Zealand are unaware of medical issues and practices for transgender people, which is problematic when GPs are required to refer their patient on to specialist services.^[17] Indeed, it is difficult to have a set practice for transgender and non-binary people because their needs and wants can be highly individualised, particularly in relation to cultural considerations and as gender identities can vary greatly from simply “male” or “female.”^[18]

Currently, the Human Rights Act 1993 prohibits discrimination on the basis of disability, including psychological abnormality.^[19] However, the Human Rights Commission Action Plan of 2004 noted that associating gender identity with “abnormality” can have a negative impact on the lives of those affected.^[20] Whilst the medical community accepts transgender identification as a medical issue, there is concern with it being depicted as an illness.^[21] Currently a diagnosis of Gender Identity Disorder is often required before further treatment or referrals can be given.^[22] The World Professional Association for Transgender Health have stated that gender identification is very broad and crosses cultures and should not be considered as an illness, particularly as this can lead to stigma which can lead to mental health issues in those with different gender identities.^[23] Whilst gender dysphoria may be severe enough in some cases to justify a mental health diagnosis, there is concern that this diagnosis is used as “a license for the stigmatization or for the deprivation of civil and human rights.”^[18]

The cost of healthcare can be a significant barrier. Input from a mental health professional may be required for further treatment but not funded, limiting the service to those who can afford it.^[24] Four types of hormone treatments are fully subsidised by the Ministry of Health, including puberty blockers, oestrogen, androgen blockers and testosterone.^[25] Currently, psychological input or counselling may be required to ensure fully informed consent, as some treatments are not fully reversible.^[25]

Currently the Ministry of Health provides funding for four gender reassignment surgeries every two years. There is currently a waiting list of 61 people, meaning the wait could be substantial. Furthermore, the only gender reassignment surgeon in New Zealand retired in February 2014. Transgender people are forced to wait or pay for private surgery overseas.^[26] There are some concerns that this surgery may not be up to the standards required, or will lack the necessary follow up.^[26]

The barriers to health access which affect transgender people have been shown to be higher for children and teenagers, because many of the specialists cater only to adults.^[27]

Gender identity and youth

Many of the transgender people who assisted with the To Be Who I Am inquiry reported that they knew from a young age that they had a different gender identity.^[28] A culture of stereotypes and negative beliefs about transgender people can lead to severe social difficulties for children exploring their gender identity.^[29] Some trans people in New Zealand have reported both physical and sexual abuse from their parents.^[30]

Gender identity in New Zealand can currently impact on a child’s right to an education. Failure to recognise when a child legally changes gender, being forced to use the wrong toilets, and bullying are problems. Some transgender children have been forced to leave schools, or find there is no school that will accept them.^[31] Bullying is a significant problem for transgender students, reported as being almost 5 times higher than that experienced by non-transgender students.^[32] Problems like being assigned a uniform for a gender a child doesn't identify with, pressure from the school to wear it, and being forced to wear that uniform as a punishment have been reported to the Human Rights Commission.^[33]

In 2012 a health survey was undertaken of 8,500 New Zealand secondary school students, and discovered that approximately 4% were either transgender or unsure about their gender. 40% of those students who identified as transgender indicated significant depressive symptoms and one in five had attempted suicide in the last year.^[32]

Civil and political rights

Laws concerning gender identity-expression by country or territory

  Legal identity change

  No legal identity change

  Unknown/Ambiguous

Legally changing names and sex / gender identity on official documentation can be a large barrier to transgender people in New Zealand depending on the type of document. Documents such as passports and birth certificates, changing names at schools and universities has often difficult in the past, and could cause problems for transgender people in the future when their academic record and degree is issued in another name,^[34] but changes have been made in the recent years to ease such barriers.

The process for legally changing ones sex on legal documents differ depending on the type of document. To change sex on a birth certificate, the applicant must show that they have undergone medical intervention to give them the “physical confirmation” of their gender.^[35] In the past this has been interpreted as meaning that a transgender person who has not had gender reassignment surgery cannot change their sex on their birth certificate, but this has since been updated to be a case-by-case assessment, therefore full gender reassignment surgery may not always be necessary.^[36]

As of 2013, the process of changing sex on a New Zealand passport has been simplified to lessen the legal barrier faced by transgender passport holders. Applicants will need to complete an application form, along with a statutory declaration of their gender identity and all other usual passport requirements for the change to occur.^[37] The process is similar in the case of changing sex on a citizenship certificate.^[36]

As of 2016, Statistics New Zealand has the globally first official statistical standard for gender identity, which provides guidance for the collection, analysis and reporting of official statistcis on gender identity .^[38]

Statutes Amendment Bill (No. 4)

During the first reading for the Statutes Amendment Bill (No 4) in April 2014, Louisa Wall submitted a Supplementary Order Paper requesting an amendment of s21(1)(a) of the Human Rights Act 1993 to include gender identity as a prohibited grounds of discrimination. Whilst it has been accepted by the government for several years that transgender people are already protected under the prohibition on sexual discrimination, Louisa Wall argued that the minor change would be a technical one to confirm and clarify this. This move was supported by Jan Logie.^[39]

Summary table

Anti-discrimination laws in employment	/	Human Rights Act 1993 does not explicitly prohibit discrimination on the basis of gender
Hate crimes laws covering gender identity	/	Legislation remains unclear, though transgender individuals are purportedly protected
Protection from discrimination on basis of health	/	Prohibitive costs and availability of surgery domestically
Right to change legal gender		Available for individuals who have started sex reassignment surgery, since 1993
Right to change legal gender without having to end marriage		Since 2013

See also

• LGBT rights in New Zealand
• Intersex rights in New Zealand
• The Inquiry into Discrimination Experienced by Transgender People

References

External links

• Trans people: facts & information – New Zealand Human Rights Commission
• Human Rights Act 1993 – legislation.govt.nz