By Katharine Woolrych
Geneva — Worldwide, the rights of people with diverse sexual orientations, gender identities and sexual characteristics are under threat. Same-sex sexual activity is a crime in 72 countries, and can be punished with the death sentence in eight countries.
Transgender people, whose gender identity is different from the gender they were assigned at birth, and intersex individuals, those born with sex characteristics that differ what are typically seen as female or male traits, face barriers to having their gender identity recognised and respected. They are often are forced to endure the humiliation and long-term trauma of psychiatric diagnosis and non-consensual sterilisation or surgery.
New Zealand’s third Universal Periodic Review, a five-yearly process whereby a state’s compliance with international human rights treaties and norms is assessed at the United Nations, may feature our first ever recommendation on these issues. On January 21st, representatives from the New Zealand Government will report to the UN on the status of human rights in New Zealand and any action (or intended action) by the government to ensure the full enjoyment of rights in New Zealand. Following the presentation of the government’s report, UN Member States will make recommendations specific to areas in which New Zealand must improve.
Despite receiving 228 recommendations over the past two cycles of the UPR, New Zealand has never received a recommendation related to LGBTI+ rights. At the UPR Pre-Session in Wellington last October, representatives from the Sexual Orientation, Gender Identity and Sexual Characteristics (SOGISC) Coalition and the Intersex Trust of Aotearoa New Zealand urged diplomats present at the Pre-Session representing 33 different countries to make bold recommendations to safeguard the rights of our rainbow communities.
New Zealand has made progress on LGBTI+ rights. It decriminalised homosexuality in 1986, legislated protections against sexuality-based discrimination in our Human Rights Act in 1993, and adopted marriage equality in 2013. Indeed, today New Zealand is proud to welcome many asylum seekers fleeing persecution on the basis of their gender identity or sexual orientation. Yet the battle is far from won, particularly for intersex and transgender New Zealanders.
A landmark report by the Human Rights Commission in 2008 outlined the extent to which trans people continue to face discrimination in all aspects of their lives, thus limiting their rights to dignity, equality and security. While some trans people are comfortable with the expression of their gender identity without some form of surgery, for others surgery is essential to live fully and authentically in their gender. These procedures have a 50 year waiting list in New Zealand for both trans feminine and trans masculine people, with access to publicly-funded surgeries limited to four surgeries every two years by the previous government. The new Government has committed to improving access by making this number the minimum rather than the maximum to be performed. However, many trans people continue to be forced to seek unsafe treatments overseas, sometimes with damaging consequences.
During their presentation at the UPR Pre-Session, the SOGISC Coalition and the Intersex Trust took the opportunity of Intersex Awareness Day to highlight the fact that many doctors around New Zealand continue to perform non-consensual surgeries on intersex children. Speakers Aych McArdle and Dr Elizabeth Kerekere called for legislative protections to comprehensively protect the rights to bodily autonomy of intersex and trans people, and for gender identity, gender expression, and sexual characteristics to be added as prohibited grounds of sex discrimination in the Human Rights Act. The impassioned presentation on these issues at New Zealand’s UPR Pre-Session was met with an equally passionate audience response even featuring an impromptu standing waiata. This undoubtedly impressed upon the diplomats in attendance the importance of these issues for New Zealanders.
Not only were diplomats prompted to consider these issues by the powerful civil society presentation, LGBTI+ rights featured for the first time in New Zealand’s National Report under ‘New and Emerging Issues’. In their report, the Government acknowledged the elevated risk of mental health issues and suicide risk in New Zealand’s LGBTI+ population, as well as issues of discrimination, access to appropriate health services, long waiting lists for surgery, and the treatment of transgender individuals in prison.
With all these issues on the table, activists and community organisations, as well as members of the rainbow community and their whānau, will be watching closely to see which recommendations and by which States are made on this topic. Should New Zealand receive its first recommendation on SOGISC issues, the Government then may choose to either ‘support’ (accept) or ‘note’ (reject) the recommendation. If New Zealand supports a recommendation for instance, to include gender identity, gender expression, and sex characteristics in the Human Rights Act at our next UPR in 2024 the Government would be expected to report on progress made towards this recommendation. Supporting recommendations does not equate to a legally binding commitment, but the regular UPR process is intended to hold States accountable. While States may still choose to dismiss any recommendation made to them at the UPR, international norms dictate that real consideration should be given to recommendations out of respect for other States.
New Zealand in particular is eager to be seen as an upstanding participant in the ‘rules-based’ international system, and in 2014 accepted 121 out of 151 recommendations it was given in the second UPR cycle - a 78% acceptance rate.
While the UPR is criticised by some as a convenient means for self-aggrandisement on the part of States, recommendations also allow civil society organisations and activists huge leverage to hold their governments accountable and provoke real change. Even recommendations that have been ‘noted’ may provide impetus for later implementation in response to public debate or civil society pressure.
At this UPR, both Recommending States and our government must make clear that the discrimination, violence, abuse, and lack of access to services currently faced by New Zealand’s rainbow communities is unacceptable. Recommendations at this UPR session have the potential to create real change in the form of legislation, public awareness campaigns, and funding for LGBTI+ support groups and services that allowing our rainbow communities the fundamental rights they deserve.