5.  The rights of homosexual, transsexual and intersex people — Ngā tika o te hunga whai pāinga ki te wahine tāne ranei, ki te iratāne, ira wahine

Introduction

Despite some legislative advances, homosexual, transsexual and intersex people continue to be socially, politically and economically marginalised to some extent within 'mainstream' New Zealand society. In turn, marginalisation and its associated 'invisibility' can lead to intentional and unintentional discrimination and vilification, compromise physical and mental health, and restrict access to participation in society.

Even where participation is not explicitly denied, the stigma associated with 'abnormal' sexual identity frequently results in exclusion or harassment. In particular, homosexual, transsexual and intersex people experience discrimination in such important aspects of life as education, work, access to health services and media representation.

“(We have) queer-inclusive human rights legislation”
Workshop participant

Homosexuality, transsexualism and intersexuality are normal variants of human sexuality, occuring at all times in all socities. How each is expressed depends on the dominant social construction of gender roles in a given society at that time. For example, 'Lesbian' and 'Gay' identities are recent, Western cultural phenomena that simply do not occur in many of the other different cultural contexts in which homosexual activity occurs. In some socities, sexually ambiguous people have an honoured place, either in socially accepted roles, or in esoteric ritual, while in others their behaviour is criminalised or its very existence denied.

In our own society, sexual or gender diversity has been viewed differently over time, and in the various cultural traditions that make up modern New Zealand. According to Ngahuia Te Awekotuku, 'Maori practised homosexuality before the Europeans arrived. Europeans came into a Maori-Polynesian-Pacific world in which sexual expression and spontaneity was enjoyed. It was a sex-positive culture in which the erotic was celebrated and dignified in the arts, in song, in moteatea and in carving' (Te Awekotuku, speaking on NZ National Radio, 11/06/04 ). In other Pacific countries, female social roles - known as fa'afafine in Samoa , fakaleiti in Tonga and mahu in Hawaii - are still accepted for some males, although this acceptance has been significantly influenced by Christianity and by European concepts of masculinity.

Radical social changes in Western societies since World War II have challenged the array of assumptions underpinning the idea that the world is unassailably and normatively heterosexual. Feminism has been a primary force in challenging these assumptions, followed, once it became possible to question the binary construction of sex and gender, by 'gay liberation'. 'Coming out' and adopting a public social identity - 'gay' and 'lesbian' - has led to a general (if not necessarily generous) social acceptance. The removal of criminal sanctions has not, however, been followed by total recognition of other rights and freedoms. Increasing assertion of different expressions of sexuality as integral components of a diverse society has accompanied the demand for legal equality. This growing sense of common cause among people marginalised by their sexuality includes embracing the old symbol of marginalisation - 'queer' - as a unifying category. Some homosexual Maori are reclaiming the title takataapui (an intimate friend of the same sex). In this section, we discuss the extent to which 'queer' New Zealanders are able to realise their fundamental human rights.

Some definitions

Sex

Generally, 'sex' refers to the biological distinction between males and females. What is not well known - let alone well understood - is that the sexual characteristics of some people are not so tidily differentiated. Estimates of the number of children born with genitalia differing from the norm vary widely, from 1 per 37,000 people to 3 per 2,000 (Whiteford, 2003). The variations within this group are also considerable, as even a small change in chromosome or hormonal structures can affect both internal reproductive and external genital characteristics. The process by which this occurs is generally understood by medical scientists, but what to do about it is not. Most children with ambiguous sexual anatomy do not require medical intervention for their physiological health (although some do), but the psychological and social consequences of either intervention or non-intervention can be devastating. These issues are discussed further below.

Gender and gender identity

Gender identity can be broadly described as the sense of self associated with cultural definitions of masculinity and femininity (Jary & Jary, 1991). Concepts of gender and gender identity can profoundly affect relations between individuals and groups (Moore, 1994; Peters & Marshall, 1996). In New Zealand , as elsewhere, ideas about what are appropriate - or 'typical' - female and male behaviour and attitudes have radically changed over the past fifty years. It has become increasingly possible for both women and men in New Zealand to be 'feminine' and 'masculine' in ways that are markedly different from the pattern of preceding generations. These changes signal a profound shift away from widely-held assumptions that gender (and gender identity) were 'natural' distinctions based upon male or female anatomical sex that, in turn, gave rise to a 'natural order' of social life and social relations.

Homosexual

Homosexual simply means 'same-sex' - as distinct from heterosexual (different sex) or bisexual (both sexes). Sexuality can be considered to encompass orientation (attraction to either the same, different or both sexes), behaviour (sexual acts) and identity (the sense of self). These aspects of sexuality are not necessarily always congruent. Many people who identify as heterosexual engage in sexual activity with the same sex at some time in their lives. Both behaviour and identity are strongly influenced by social and cultural factors and constraints.

Transsexual

The term 'transsexual' refers to a person who does not identify with the biological sex designated at birth and who adopts the social role of the gender they identify with. Because this is a phenomenon of identity, rather than biology, it is now more common to use the term 'transgender' (which we will use for the rest of this chapter). Gender reassignment technology permits intervention (primarily by surgery and hormone treatment) to change anatomical sex to conform with a person's preferred gender identity. However, for some transgender people, this is neither accessible nor acceptable. It is also important to distinguish between 'transgender' and 'cross-dresser'. A transgender person desires to change their bodily characteristics (whether or not by surgery), whereas a cross-dresser is interested only in wearing the clothes of the opposite sex, but not in changing their anatomy.

“Queer kids bullied by teachers/students”
Gay, lesbian, bisexual, transgender workshop participant

Intersex

'Intersex' refers to people whose biological sex is indeterminate. Various terms have been used to define people in this category, such as hermaphrodite, but intersex is now the preferred descriptor. In New Zealand and other technologically advanced societies, most infants of indeterminate sex are assigned a sex by medical intervention. In most cases the decision to assign a gender to 'correct' the child's variation from the norm is taken by parents and doctors when the child is an infant, followed by repeated genital surgery and ongoing hormonal and psychological treatment, together with socialisation in the assigned gender. There is a significant risk that this surgical and endocrinological assignment of the child's sex may not be consistent with their adult gender identity.[12] Whether (and to what extent) such intervention is necessary for the child's physical and mental health, or whether it is both physiologically and psychologically harmful, remains a contentious issue.

International context

The international bill of rights [13] applies to everyone, including homosexual, transgender and intersex people. It includes the right to be free from discrimination and to exercise human rights equally with everyone. Human rights are universal, in that they apply to everyone without distinction (such as race, sex, language or religion) and are inherent, in that they belong to everyone by virtue of their common humanity. While these rights cannot be given away, in some societies people are prevented from exercising them in everyday life.

Homosexual people

Homosexual people are not specifically mentioned in the international bill of rights, but this omission does not mean that homosexual people are not protected. The ICCPR prevents such technical arguments on the application of the fundamental rights and freedoms, including the freedom from discrimination. Article 5.2 states that:

There shall be no restriction upon or derogation from any of the fundamental human rights recognised or existing in any State Party to the present Covenant pursuant to law, conventions, regulations or custom on the pretext that the present covenant does not recognise such rights or that it recognises them to a lesser extent.

The United Nations Human Rights Committee (the Committee) has determined that discrimination in the ICCPR should be understood to include 'sexual orientation' as a protected status. In 1994 the Committee held that 'sexual orientation' should be understood to be a status protected against discrimination under Articles 2 and 26 of the ICCPR. [14]

Many countries, including New Zealand , have recognised and protected the right of all citizens, including homosexual people, to be free from discrimination on the ground of their sexual orientation. However, more than 80 countries have laws which criminalise consensual sexual behaviour between adults of the same sex and at least eight of them punish such behaviour with the death penalty (International Lesbian & Gay Association, 2000).

The United Nations Human Rights Commission (the Commission) has also addressed human rights violations based on sexual orientation in some of its resolutions, including a resolution on extrajudicial, summary, or arbitrary executions (Resolution 2003/53, 2003) in which the Commission called upon 'States concerned to investigate promptly and thoroughly. all killings committed for any discriminatory reason, including sexual orientation.' In 1999, the Special Rapporteur on extrajudicial, summary, or arbitrary executions noted that 'criminalizing matters of sexual orientation increases the social stigmatization of members of sexual minorities, which in turn makes them more vulnerable to violence and human rights abuses, including violations of the right to life. Because of this stigmatization, violent acts directed against persons belonging to sexual minorities are also more likely to be committed in a climate of impunity' (Human Rights Watch, 2004a).

Recent attempts to be more specific about the protection of the rights and freedoms of homosexual people in the international human rights standards have not been without contention. At the 59 th session of the United Nations Commission on Human Rights in 2003, Brazil introduced a resolution on human rights and sexual orientation. The resolution:

• expressed deep concern at the occurrence in the world of human rights violations against people on the grounds of their sexual orientation
• stressed that human rights and fundamental freedoms should not be hindered in any way on the grounds of sexual orientation
• called upon all State parties to promote and protect the human rights of all persons regardless of their sexual orientation
• noted the attention given to human rights violations on the grounds of sexual orientation by the special rapporteurs in their reports to the Commission on Human Rights, as well as by the treaty monitoring bodies, and encouraged all special rapporteurs of the Commission to give due attention to the subject within their mandates (United Nations Economic and Social Council, E/CN.4/2003L.92).

After lengthy debate, consideration of the resolution was postponed by a narrow vote until the Commission's 60 th session in March 2004. At the session in 2004 the New Zealand delegation spoke to the resolution:

Discrimination against people, on the grounds of their sexual orientation, takes place in all too many countries. That is a reality. We cannot ignore it. And we cannot pretend it does not exist. It is silence that allows human rights abuses to flourish. It is silence that allows misunderstanding and mistrust to grow into fear, intolerance and discrimination. The United Nations has been silent on sexual orientation for too long. It is time to break that silence. The issue should be on the agenda and the Commission should respond. A failure to speak out can only be interpreted as condoning discrimination and prejudice.[15]

Despite strong support from some countries, the resolution was dropped after Brazil decided there was insufficient international support for the resolution for it to continue acting as sponsor.

Transgender people

Internationally, it is increasingly accepted that a transgender person can be protected by laws that prohibit discrimination on the basis of sex. For example, courts in Canada , the United Kingdom , the United States of America , and Australia have ruled that sex discrimination includes discrimination against transgender people who have undergone gender reassignment surgery.

However, there is no consensus internationally about whether a transgender person who has not had gender reassignment surgery is protected by the law against sex discrimination. In the UK , the courts have said that it is for Parliament to decide the point at which a person should be treated as if they were of the opposite sex to that with which they were born. In one case in Canada , a different conclusion was reached.

In Australia there are conflicting cases. In one group of cases, the courts have said that a transgender person who is pre-operative is not a member of the opposite sex to that with which they were born. In these cases the courts said that a requirement for reassignment surgery allowed society as a whole to acknowledge that an irreversible medical decision had been made that confirms the individual's identity.

In another group of cases in Australia , a different conclusion was reached. In one of these cases the then Chief Justice of the Family Court of Australia said:

A requirement for surgery seems to me to be a cruel and unnecessary restriction upon a person's right to be legally recognised as a sex which reflects the chosen gender identity and would appear to have little justification on grounds of principle.[16]

The court also said that the requirement for surgery 'is not only generally inconsistent with human rights' but, because the requirement is more disadvantageous and burdensome for female to male transgender persons than male to female transgender persons, 'the requirement of surgery is a form of indirect discrimination'.

In 2002, the European Court of Human Rights ruled (in two separate cases involving the laws in the UK ) that in general:

. the Court considers that society may reasonably be expected to tolerate a certain inconvenience to enable individuals to live in dignity and worth in accordance with the sexual identity chosen by them at great personal cost. [17]

The UK Government agreed, and has passed a new law that will give legal recognition to a transgender person's acquired gender, whether or not they have undergone gender reassignment surgery. The Gender Recognition Act includes some legal requirements and conditions for recognising a change of gender.

Intersex people

The legal situation for intersex people is particularly compelling and more complex. Intersex people have the same human rights as everyone else under the international bill of rights. But there do not appear to be any relevant international human rights standards about intersex people. There is little guidance on the application of human rights generally for intersex people, and this causes difficulties in some areas.

Key difficulties for intersex people are the lack of recognition that they exist and the problems that arise when they are assigned a sex which they would not choose for themselves. International literature shows that debate about the human rights of intersex people is increasing.

New Zealand context

Successive New Zealand Governments have taken steps to remove the explicit and implicit barriers that prevent homosexual people from being able to exercise their human rights. The most significant step in the last twenty years was the Homosexual Law Reform Act 1986, which removed the criminal sanctions for homosexual activity between consenting male adults.

In 1993, the HRA was amended to prohibit discrimination on the grounds of sexual orientation (defined in section 21 to mean 'a heterosexual, homosexual, lesbian or bisexual orientation'). The prohibition on discrimination at that time applied broadly to the areas of providing goods and services to the public, accommodation, employment and access to educational institutions. There are some exceptions for religious organisations.

However, discrimination continues to exist in the different (and disadvantageous) treatment of homosexual, transgender and intersex people in a number of areas, including the rights and responsibilities flowing from relationships and the ways in which families are defined (which do not recognise homosexual partners and their families). Some legal changes have occurred to address some of those matters, such as extending protection to a wider range of people (including homosexual people) under the Domestic Violence Act 1995 and the Property (Relationships) Amendment Act 2001.

A review of laws for compliance with human rights, Consistency 2000 (Human Rights Commission, 1998), identified the recognition of differential treatment of family forms as a key issue in assessing compliance with international human rights standards:

If legislation and policy recognises only some types of family groupings and not others, discrimination on grounds of marital status, family status, sexual orientation and race is inevitable. Where this is restricted to traditional forms and is not inclusive of real relationships of economic dependency. unfair discrimination and anomalies will occur (p.64).

That same report identified a number of laws that discriminated on the grounds of sexual orientation, some of which (such as the law dealing with division of property when a relationship ends) have been changed. The most significant set of changes designed to end discriminatory differential treatment is currently being considered by Parliament in the form of the Relationships (Statutory References) Bill. A companion measure, the Civil Union Bill, will, if passed, provide for the registration of civil unions, including the unions of homosexual partners.

In addition to legal measures to ensure equal access to human rights, the Government has recently assigned to the Ministry of Social Development a policy role in this area. While all government agencies are expected to ensure they act in accordance with human rights standards, this initiative may better inform policy work on issues affecting homosexual and transgender people. It is still in its formative stages, but a key element of its work programme will include human rights and it is also likely to be a mechanism for enhancing compliance with the BoRA and the HRA.

New Zealand today

Across the full range of human rights considered in this report, in the consultations with homosexual, transgender and intersex people, and from the literature, some clear themes emerged about the current status of homosexual, transgender, and intersex people in New Zealand today. Those themes are: lack of data; the right to be who you are; and the right to security.

Lack of data

The lack of robust statistical data has made comprehensive assessment of the current human rights status of homosexual, transgender and intersex people difficult. The census does not include a question about sexual orientation. The only official datum available about the demography of homosexual people is the number of people who indicated in the 1996 or the 2001 census that they were a 'same sex' couple living together.[18] This lack of data means that reliance must be placed on literature and research as they become available. Although some surveys have been undertaken in New Zealand , there is little that is known about the realities of the ways in which lesbian and gay people participate in society. There is no systematic identification of data gaps, nor a framework for data collation and analysis.

The right to be who you are

During the preparation of this report 14 community consultations were held with gay, lesbian, takatauapui, transgender and intersex people. There were three written submissions and, of those that responded to the related web survey, two were from groups representing 300 individuals. Many of those we consulted made positive comments about living in New Zealand and about their human rights generally.

However, a clear theme emerged about the constraints gay, lesbian, takatauapui, transgender and intersex people experience in simply being able to be who they are. Some consultation participants indicated that, in certain situations, they were not willing to disclose their sexual orientation for fear of marginalisation and discrimination. Research also shows that some people are reluctant to access health services because of fears about the repercussions of disclosure of sexual orientation, with adverse health consequences as a result (Saphira & Glover, 1999).

The right to security

The right to be who you are ties in closely with another major area of concern for homosexual, transgender, and intersex people: the right to security. As noted in Chapter 7: The right to life, liberty and security of person, crime statistics do not identify the sexual orientation of victims and a clear assessment of offending based on the victim's sexuality (real or perceived) is not possible. Consultation participants indicated that fear of violence was grounded in their actual experiences of harassment, including offensive language, vilification, and exclusion.

Gay, lesbian and takatuapui

According to one survey, 41 percent of lesbian and bisexual women have experienced verbal abuse, 32 percent have been threatened with violence because of their sexuality, and 13 percent have been physically assaulted (Rankine, 2001). Violence against gay men also remains disturbingly high in New Zealand. In 2001, two murders were reported as having the sexual orientation of the victim as a motivating factor (Patterson, 2001). In 2002, a homosexual Tauranga man was fatally stabbed (MacBrayne, NZ Herald , July 2002). In 2003, David McNee a well-known member of the gay community, was killed.

In 1997 the Office of the Children's Commissioner reported that there were high levels of both physical and emotional bullying in New Zealand schools. The report suggested that within any particular year it is likely that between 50 and 75 percent of children are bullied and that 10 percent are being bullied weekly (Maxwell & Caroll-Lind, 1997). Gay and lesbian sexual orientation was one of the factors that made students vulnerable to bullying. In June 2004, a college asked a 14-year-old victim of bullying to leave the school. The boy was accused of being gay (Ross, 2004).

There is also evidence from both New Zealand and overseas to suggest that same-sex attracted young people are more likely attempt suicide than other young people. A Christchurch health and development study [19] found that same-sex attracted young people, interviewed at 21 years of age, were six times more likely to have attempted suicide. A recent study carried out in New Zealand schools found that the suicide risk for same-sex attracted young people was at least two times that of their opposite-sex attracted peers, even when other risk factors where taken into account (Fleming, 2003).

Transgender people

There is a similar lack of data about transgender people, so that information must be drawn from consultations and literature reviews as well as other information sources. One such source is complaints to the Human Rights Commission about experiences of discrimination.

The Human Rights Commission has received complaints from transgender people of discrimination on the grounds of both disability and sex. The Commission's complaints process provides one way of addressing discrimination. One complaint resulted in the Ministry of Health changing its guidelines on the availability of gender reassignment surgery. But recognition of the rights of transgender people is a legally complex area. The Commission has advised successive Governments that amendment to the grounds of discrimination in the HRA would help to clarify some of the issues. At the time of the 2001 amendments to the HRA, the Government indicated it would review the prohibited grounds of discrimination in light of the New Zealand Action Plan for Human Rights.

The Human Rights (Gender Identity) Bill is a Private Member's Bill which was prepared by Georgina Beyer, a Member of Parliament. That Bill would amend the Human Rights Act to make gender identity a prohibited ground of discrimination in the Act. However, this Private Member Bill has not been selected out of the ballot.

There has never been a test case in New Zealand courts about whether a transgender person who has had gender reassignment surgery can be protected from sex discrimination. New Zealand courts are likely to follow international precedents and rule that a post-operative transgender person can be protected. The legal situation for transgender people who are pre-operative, or who do not wish to undergo gender reassignment surgery, has not been tested. The courts in New Zealand might follow the law in other countries and consider human rights laws on sex discrimination provide protection. On the other hand, the courts might say that it is up to Parliament to make laws about that, in which case the United Kingdom experience would be helpful.

There were four consultation meetings with transgender people in the preparation of this report. Transgender people said the rights to security and freedom of expression were the most important human rights for them, followed by the right to work, the right to health and the right to education.

In terms of the right to security of the person, transgender people reported concerns about lack of safety, harassment and threats from other people who lacked understanding, and a fear of being themselves. Transgender people wanted information about gender dysphoria to be more generally available, and greater human rights education about transgender issues.

In relation to freedom of expression, transgender people have reported difficulties with the definition of 'sex' on some official documents (including difficulties with changing gender on official forms such as birth certificates) and with their experience of 'the right to be yourself'.

Intersex people

The Commission has received a number of complaints from intersex people about their treatment by medical professionals and about their inability to categorise themselves as 'intersex', rather than male or female, on official documents.

The lack of information about the experiences of intersex people is a key area requiring more work. The very real and compelling legal difficulties for intersex people (including the lack of recognition that they exist and the problems that arise when they are assigned a sex that they would not choose) also require specific attention.

Conclusions — Ngā whakamutunga

New Zealand has done well in decriminalising homosexual activity between consenting adults, making sexual orientation a prohibited ground of discrimination and in specific initiatives to better inform policy and day to day life. However, lack of official data is a serious impediment to progress, and homosexual people still experience violations of their right to security and social limitations on their right to be who they are. In relation to transgender and intersex people, New Zealand has, in some cases and policy areas, reflected human rights principles, drawing upon international human rights developments. However, the law on discrimination in New Zealand is not clear for intersex people and could be clearer for transgender people who have not had, or do not wish to have, gender reassignment surgery or medical treatment related to their gender identity.

6.  Selected issues: conclusions — Ngā take motuhake: Ngā whakamutunga

As humanity constantly changes, so too do human rights issues and related human rights standards. Tools are needed to ensure new issues are dealt with on a principled basis, especially when technology is changing rapidly, the implications of some issues are enormous, and the ramifications of some are unknown. In this chapter we have considered four issues and how a human rights-based approach, along with international cooperation or comparison, can assist in meeting the complex challenges of those issues in New Zealand.

Each country must decide for itself how best to respond to emerging issue, both in terms of the international human rights framework of which it is part and within its own jurisdiction. New Zealand has an opportunity for leadership on some of these issues. The human rights-based approach provides us with a sound basis for ensuring informed and robust public debate on emerging issues, good decision-making through participation and accountability, and confidence that those decisions will be based on agreed human rights standards.

• Previous ~
• Top ~
• Next