Ref: 204806, 204879 & 204880
Thursday 8 October 2020
K Issac
By email to
[FYI request #13803 email]
Tēnā koe K,
Response to your request for Official Information
On 14 September 2020, you requested the following information from the Human
Rights Commission (“the Commission”):
1.
What is the HRCs definition of "sex"
2.
What is the HRCs definition of "gender" If your definition includes the word
identifies (or a variation of) please also include your definition of that.
3.
What is the HRCs definition of "gender identity or expression" If your
definition includes the word identifies (or a variation of) please also include
your definition of that.
4.
What is the HRC's definition of "transgender"? If your definition includes the
word identifies (or a variation of) please also include your definition of that.
5.
On what basis has the HRC determined/interpreted that the prohibited
grounds of discrimination under Section 21(1)(a) on the basis of "sex, which
includes pregnancy and childbirth" (as stated in the Act) also includes
gender identity and expression?
6.
What (if any) New Zealand case law supports this interpretation?
7.
Any consideration, advice, correspondence (of all forms, internal or external)
etc on the inclusion of gender identity and/or expression as a separate
classification of prohibited discrimination under Section 21 of the Human
Rights Act.
8.
On what basis does the HRC state that "The Yogyakarta Principles set out
the international human rights standards that all countries must meet to
uphold the human rights of sexual and gender minorities" (references
https://www.hrc.co.nz/your-rights/our-work/ and https://www.hrc.co.nz/your-
rights/your-rights6/) given that these principles:
a. Are NOT recognized in international human rights law
b. Have no legal status (either in New Zealand or internationally)
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[Human Rights Commission request email] www.hrc.co.nz
c. Have never been accepted or ratified by the United Nations
The Commission’s definition of “sex” under s 21 of the Human Rights Act
In response to questions 1-4 above, that information is publicly available on the
Commission’s webpage
Trans people: facts & information particularly the
Terminology resource.
In response to question 5, since 2005, the Commission has interpreted sex under
s21(1)(a) of the Human Rights Act 1993 to include an individual’s gender identity,
gender expression and sex characteristics. I have
attached the Human Rights
Commission 2005 Policy on the Application of the Act to transgender people.
In response to question 6, while this matter is yet to be determined by the New
Zealand Courts, this interpretation was supported by a 2006 Crown Law opinion by
the Acting Solicitor General.1
In response to question 7, we have found no information relating to the inclusion of
gender identity and/or expression as a
separate classification of prohibited
discrimination under Section 21 of the Human Rights Act. However, the Commission
has recommended the government give consideration to the broader issue of
whether the New Zealand framework should expressly define and recognise the right
to gender identity,2 and update relevant laws and policies to enable transgender
people to realise their right to self-identity in accordance with international human
rights obligations.3 Recommendations to amend the Human Rights Act to specifically
include gender identity under s21 have been made to the New Zealand Government
in the latest Universal Periodic Review4 and by the Committee on the Elimination of
Discrimination against Women.5
For further information, please see the Commission’s publicly available report
PRISM: Human Rights issues relating to Sexual Orientation, Gender Identity and
Expressions, and Sex Characteristics in Aotearoa New Zealand.
The Yogyakarta Principles
The information you requested is publicly available
in PRISM: Human Rights issues
relating to Sexual Orientation, Gender Identity and Expressions, and Sex
Characteristics in Aotearoa New Zealand.
1 Publicly available on the beehive website, Crown Law
Human Rights (Gender Identity) Amendment
Bill, accessed 30 September 2020.
2 See Human Rights Commission,
Submission on Births, Deaths, Marriages, and Reslationships
Registration Bill, March 2019, publicly availabl
e here. 3 See
Submission of the New Zealand Human Rights Commission to New Zealand’s Third Universal
Periodic Review, July 2018, publicly available
here. 4 4 Human Rights Council Working Group on the Universal Periodic Revi
ew Report of the Working
Group on the Universal Periodic Review: New Zealand UN Doc A/HRC/41/4 (1 April 2019) at [122.51]
and [122.52].
5 Committee on the Elimination of Discrimination against Women
Concluding observations on the
eighth periodic report of New Zealand UN Doc CEDAW/C/NZL/CO/8 (25 July 2018) at [12(a)].
We refer you specifically to page 9 provided below (
emphasis added):6
International human rights law applies to all people, including SOGIESC-diverse
people, without exception. While there is no explicit covenant or convention that
has as its stated purpose the elimination of discrimination against people with a
diverse sexual orientation, gender identity and expression, or sex characteristics,
the rights of SOGIESC diverse people are firmly anchored in existing and binding
human rights treaties. The Yogyakarta Principles, adopted in 2007, apply existing
international human rights law to sexual orientation, gender identity and
expression, and sex characteristics. They address a broad range of human rights
and emphasise that SOGIESC-diverse people have the rights to universal
enjoyment of all human rights, including non-discrimination and recognition
before the law.7
While not themselves legally binding, the Principles affirm
existing legal standards that States have agreed to be bound by. They are
not a wish list of aspirational goals; every statement and recommendation
in the document is grounded in existing obligations under international
human rights law and binding human rights treaties.8 The Yogyakarta
Principles have been well tested as sources of interpretation, having been
cited hundreds of times at the United Nations Human Rights Council; in
bills, legislation, and executive policy; and court decisions.
In 2017, a supplementary paper to the original Principles was published: the
Yogyakarta Principles plus 10.9 These additional Principles articulate the
following ten years’ progressive understandings of existing human rights relevant
to SOGIESC; such as the right to legal recognition, the right to sanitation, and
the right to protection from poverty.
Alternative avenues
If you are unhappy 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.
If you have any further queries about this response, please feel free to contact me
directly.
Nāku noa, nā
Jaimee Paenga
Legal Adviser
6 Please note the footnote numbering is different in this document than in the report itself, however the
content remains as published.
7
The Yogyakarta Principles: Principles on the application of international human rights law in relation
to sexual orientation and gender identity (Geneva, 2007).
8 Gwyneth Williams
Jurisprudential annotations to the Yogyakarta Principles (University of Nottingham
Human Rights Law Centre, 2007).
9
The Yogyakarta Principles plus ten: Additional principles and state obligations on the the application
of international human rights law in relation to sexual orientation, gender identity, gender expression
and sex characteristics to complement the Yogyakarta Principles (Geneva, 2017).
