Executive Summary

In 2006 the Human Rights Commission launched the world�s first inquiry by a national human rights institution into discrimination experienced by transgender people.

The focus was on three areas: experiences of discrimination, access to health services, and barriers to legal recognition of gender status. The Inquiry process placed emphasis on participation of and accountability to the widest possible range of trans people.

Trans people come from every sector of New Zealand society and the visibility of the breadth of that diversity is the most effective challenge to stereotypes that too frequently blight the lives of trans people.

Gender identity and its expression vary greatly. This report acknowledges that. The word ‘trans’ has been adopted where it has been necessary to use a generic term.

Over eighteen months the Inquiry met with some 200 people aged from the early teens through to people in their seventies. Many came as individuals – trans people, their partners, family, friends and colleagues. Others represented trans advocacy organisations, community groups and unions. Submissions also came from health professionals, academics and government agencies.

The Inquiry has found that trans people strive for a life of dignity and many succeed in doing so. Yet repeatedly trans people have had to triumph over severe, sometimes heart-breaking, adversities. Their choice was never about lifestyle, but the realisation of a core part of their identity.

The Inquiry did not seek to identify new or specific rights for trans people. Rather it took the rights set out in the Universal Declaration of Human Rights, part of international human rights law and to some extent domestic New Zealand law, and asked whether trans people experience those rights at least to the same extent that other New Zealanders do.

Social context

Historically, societies in all parts of the world included people who, today, would be described as trans. In New Zealand, there is evidence that traditional Māori communities were inclusive of whakawāhine, while in other Pacific countries female social roles (such as fa’afafine in Samoa, and fakaleiti in Tonga) were traditionally accepted for some males.

Yet there have also been periods when trans people were punished severely for defying strictly defined categories of morally or legally appropriate behaviour and dress for women or men.

Trans people challenge the view that someone born with a male body was always a man or, indeed, that a person always identifies as a man or a woman, rather than belonging to a third gender or sex. Today, gender identity issues and the rights of trans people are increasingly part of international human rights debates.

Children and young people

Trans children and young people have the right to be accepted for who they are, but are dependent on others, parents and teachers, to ensure those rights are understood and protected. The visibility of some trans young people has highlighted major barriers within schools, at work, playing sport, accessing health services and actively participating in their community. It is the responsibility of society at large to address these concerns so that trans
children’s rights, including their right to education, are realised. There is an urgent need for information and resources for trans children and young people, their parents and families and schools.

Equality and freedom from discrimination

Trans people in New Zealand face discrimination that undermines the ability to have a secure family life, to find accommodation, to work, to build a career and to participate in community life. At worst, there was constant harassment and vicious assault. Trans people faced daily challenges simply to find acceptance and do the things other New Zealanders take for granted.

The evidence presented in this report demonstrates many critical policy areas where no consultation has taken place with trans people and decisions have been made based on extremely limited knowledge about the impact on them.

Trans people must be given the opportunities to participate in decisions that affect them. This will require government agencies to work collaboratively with them to address the priorities identified in this report.

There must be no doubt that trans people are protected from discrimination under the Human Rights Act 1993. The Inquiry considers that section 21(1) (a) of the Human Rights Act 1993 should be amended to state clearly that sex includes gender identity.

Health

The Inquiry found significant gaps and inconsistencies in the provision of health services. The services that are available are ad hoc and provided by a few dedicated health professionals. Most trans people cannot access the gender reassignment services necessary for them to live in their gender identity and appropriate sex.

The vast majority of services are not available within the public health system, resulting in many trans people bearing the cost of private assessments and medical treatments, either in New Zealand or overseas. The cost of gender reassignment services is a significant barrier to many trans people.

Trans people and health professionals are consistent in how to address these problems. The first priority is to build on the Inquiry by having the Human Rights Commission facilitate discussions between trans people, health professionals and the Ministry of Health to map out clear treatment pathways and standards of care.

Citizenship

The Inquiry uses the term ‘citizenship’ to convey a sense of belonging and participation in society. This wider lens of active and full citizenship is applied to three aspects of most significance for trans people: official documents issued by the state, the situation of New Zealand citizens born overseas, and privacy-related rights.

A strong case is made for trans people to be able to obtain official documents that reflect their gender identity. The effect of current law and policy is that many trans people do not have, and cannot obtain, official documents that contain consistent information about their gender identity and sex. The report recommends changes to current law to simplify requirements for change of sex on a birth certificate, passport and other documents. The Inquiry advocates a threshold that should apply across all official documents.

Most trans people experience difficulty having their rights to privacy respected. For many, disclosure resulted in discrimination and other threats to their security. The Inquiry found that the current law provides an adequate basis for trans people to assert their rights to privacy of personal information and for agencies holding such information to be clear about their responsibilities to protect it. Inconsistencies in practice require attention.

Intersex issues

While the Inquiry’s terms of reference were limited to trans people, intersex people made submissions that have raised significant human rights issues. These merit urgent consideration and will require broader consultation with intersex people and their families, relevant government agencies and health professionals.

There are significant issues specific to intersex people in relation to medical procedures performed on children and young people with intersex conditions. Having access to full medical records, including those used as the basis for any legal change of sex, is critically important for intersex people. The absence of such records compounds the invisibility, secrecy and shame felt by many.

The legal framework

The legal framework protecting the human rights of trans people is complex and confusing. Two areas are explored in depth: the application to trans people of the antidiscrimination provisions of the New Zealand Bill of Rights Act 1990 and the Human Rights Act 1993, and legal policies for changing sex on a birth certificate and other official state documents.

The Inquiry concludes that trans people would be better protected by a specific reference to gender identity in the Human Rights Act 1993 so a consistent, non-discriminatory definition of a person�s sex applies across all laws.

Recommendations

Enabling effective participation by trans people in decisions that affect them by:

  • recognising and supporting the leadership and advocacy of trans people
  • increasing government agencies’ consultation and collaboration with trans people, starting with the priority areas outlined in this report

Reducing discrimination and marginalisation experienced by trans people by:

  • clarifying, for the avoidance of doubt, that protection from sex discrimination in the Human Rights Act 1993
  • includes protection from discrimination on the grounds
  • of gender identity
  • recognising that protection from discrimination under the Human Rights Act 1993 requires policies and practices to be inclusive of trans people, whatever their sex or gender identity
  • the Human Rights Commission, together with trans people, developing a human rights education programme to address human rights and discrimination issues for trans people.

Improving trans people’s access to public health services and developing treatment pathways and standards of care for gender reassignment services, through the Ministry of Health working in co-operation with trans people and health professionals.

Simplify the requirements for changing sex details on a birth certificate, a passport and other documents to ensure consistency with the Human Rights Act by:

  • amending section 28(3)(c)(i)(B) and (C) of the Births, Deaths, and Marriages Registration Act 1995 by substituting the ‘physical conformity’ threshold with the requirement that someone ‘has taken decisive steps to live fully and permanently in the gender identity of the nominated sex’
  • allowing the Family Court to make a declaration as to sex for overseas-born New Zealand citizens.

Consider the specific human rights issues facing intersex people, through the Human Rights Commission undertaking in-depth work in consultation with intersex people and other relevant government agencies.

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