Statutes Amendment Bill no. 4 and Gender Identity

Riding on the wave of marriage equality passing in New Zealand in August last year, Louisa Wall is proving herself to be a strong ally to the rainbow community and has moved to improve the lives of trans people in New Zealand.

She has submitted a supplementary order paper (pdf) that amends a soon to pass statutes amendment bill to include gender identity in the Human Rights Act.

Statutes Amendment Bills

Statutes amendment bills are a special class of bill intended to address any typos or need for clarification in legislation (defined as an "omnibus bill proposing amendments of a technical nature"). They are a normal part of parliamentary process and several are passed each term (up to 5 looking at parliament's website). They cannot change the law and must be agreed on unanimously by all members of parliament.

Louisa's Amendment

As noted above, statutes amendment bills cannot change the law. What Louisa is aiming to do is have the Human Rights Act clarified to explicitly mention gender identity under examples of discrimination based on sex.

When Georgina Beyer (NZ's first trans member of parliament) was in parliament in 2004, she tried to introduce a member's bill that would amend the Human Rights Act to include gender identity. The Solicitor-General at the time put forth a legal opinion that gender identity was already implicitly included in the Human Rights Act and so Georgina withdrew it, much to the chagrin of much of the community.

The current National government has reiterated this opinion when challenged about the lack of explicit mention in the Universal Periodic Review of Human Rights by the UN on behalf of New Zealand citizens. This has backed them in to a political corner.

Given successive government's opinion that gender identity is already covered, it is a technical clarification to explicitly include it under sex discrimination. There is little anyone can do to protest such an amendment and there is no good reason why it shouldn't pass.

The Downsides

This is not a law change. Trans people in New Zealand will gain no more rights if this passes and lose none if it doesn't. It is a step forward but it is mostly a symbolic one. The Solicitor-General's opinion has so far not been tested in court so there is uncertainty whether the courts will agree with it. There is also uncertainty as to whether including gender identity under sex discrimination will actually protect trans people against discrimination or only under a subset of circumstances.

It does pave way for future gains for trans people and Louisa is right in attempting to do it. However the fight isn't over if it passes and we're still going to need strong allies and support for the next steps.