Countering Hate Speech Aotearoa Submission to the Law Commission's Ia Tangata Project
A review of the protections in the Human Rights Act 1993 for people who are transgender, people who are non-binary, and people with innate variations of sex characteristics.
(NB This was written when Rights Aotearoa was Countering Hate Speech Aotearoa.)
Countering Hate Speech Aotearoa
Submission to Te Aka Matua o te Ture
Law Commission
He Puka Kaupapa | Issues Paper 53
Ia Tangata
A review of the protections in the Human Rights Act 1993 for people who are transgender, people who are non-binary, and people with innate variations of sex characteristics.
Wellington, Aotearoa, September 11, 2024
Introduction and Preamble
1. Countering Hate Speech Aotearoa (CHSA) is a progressive, nonpartisan, charitable initiative that promotes legislation against hate speech in Aotearoa, provides support to organisations on hate speech topics, and ensures professionals do not engage in hate speech in their professional lives. We are focused on LGBTQIA+ issues, with a particular interest in the rights of transgender, intersex, gender-diverse, gender-queer and non-binary people.
2. CHSA also has a wider remit of hate speech and hate crimes against all groups that experience these phenomena and a focus on human rights more generally.
3. On a day-to-day basis, we also generally try to rebut the work of overseas-influenced actors like the Free Speech Union NZ, Family First, Speak Up for Women, etc., who don’t seek to promote progress on human rights in the unique context of Aotearoa, and who seek to import hatred and bigotry into Aotearoa.
4. CHSA strongly believe that hate speech, when uttered in the public sphere, has a corrosive effect on society's fabric. We argue for the adoption of tightly scoped hate-speech laws that cover the purely public domain and constantly revise our views in line with emerging evidence.
5. CHSA has an advisory group of 9 people, including human rights professors and lawyers, transgender people, non-binary people, people with innate variations of sex characteristics, social/queer theorists, a psychotherapist, and young activists. We take a thoroughly multi-disciplinary approach to our praxis.
6. The Ia Tangata project team is to be thoroughly congratulated on producing a humane, optimistic, progressive, forward-looking, highly analytical, comprehensive, and detailed issues paper on extending protections in the New Zealand Human Rights Act 1993 to cover transgender people, non-binary people, and people with innate variations of sex characteristics.
7. Of course, the issues paper is necessarily legalistic, which is both its greatest strength and biggest weakness at this point in the law reform crafting process.
8. CHSA will seek to mirror this optimistic, forward-looking, humane, progressive tone in its submission to the Ia Tangata project team.
9. It is incontrovertible that people are necessarily embodied and spend a lot of time, effort, money, and psychological energy on their gendered or non-binary (ungendered) experience of the world. This reform should ultimately spark joy, and one should not lose sight of that.
10. This is a once-in-a-generation opportunity to advance significantly the cause of human rights in Aotearoa with regard to the discrimination experienced by transgender people, non-binary people, and people with innate variations in sex characteristics.
11. From public comments made by various actors on X and elsewhere during the submission process, CHSA understands that the Law Commission’s Ia Tangata project team has likely received many submissions opposing the reforms under consideration for numerous and varied reasons.
12. Countering Hate Speech Aotearoa has had the matter that Ia Tangata concerns itself with front of mind for over a year now as we have met with many members of Parliament from both Government and Opposition parties to discuss the member’s bill on this matter that Debbie Ngawera-Packer inherited from Dr Elizabeth Kerekere.
13. This has given us unique insight into how these reforms are likely to be perceived at the next stage of the process—when the executive branch considers how to progress the Ia Tangata project team’s findings and whether to adopt them as a Government-led legislative reform.
14. In these meetings, CHSA discerned no visible appetite from any MPs to go backward on this matter. All the MPs considered the current legal and social baseline to be the Crown Law 2006 position.
15. We mention this because we think this shows that the proposed reforms will be treated positively at the next step in the process, and this has guided our strategy in our submission.
16. In discussing our submission with overseas human rights experts from different legal systems, they were all highly envious that Aotearoa has an independent commission that intercedes at this stage in the lifecycle of law development. No such body exists at the federal level in the United States of America, although some states have such a body for state-level lawmaking. We intend to take advantage of this unique fact by making our submission quite wide-ranging.
17. In our opinion, the Law Commission's necessarily legalistic and highly detailed approach risks bogging down the reforms—a fact the opponents of any reform in this area are currently taking advantage of.
18. The fact that the Law Commission has consulted so widely during the oral submissions process, has publicised the submission website heavily, and met with several gender-critical groups was utterly the correct approach because it effectively neutralises any arguments that the consultation process was biased in any way. Indeed, the Women’s Rights Party is already arguing online that the Law Commission has failed to consult widely when this is absolutely not the case.
Situating the situated
19. Like any social process – especially a human rights reform - the Ia Tangata project is itself situated in a wider process of positive societal change concerning attitudes towards transgender people, non-binary people, and people with innate variations in sex characteristics.
20. It is necessary “to situate the situated” to channel the thinking of the esteemed social philosopher Michel Foucault.
21. Because the Ia Tangata issues paper is so necessarily legalistic, CHSA asserts it is in danger of being derailed during the period when the project team reviews the submissions unless work is done to situate the reforms in a wider context of sociological data, human rights thinking, and gender theory.
22. This is where we assert that CHSA and our unique approach to the intersection of gender, law, philosophy, and human rights can help illuminate the way forward for the Ia Tangata project team.
23. As Ludwig Wittgenstein famously said, the task of philosophy is to show the fly the way out of the fly bottle. He asserted that the task of philosophy was to reduce conceptual confusion (through the mechanism of his beloved language games) and show the fly the way out of the bottle (the bottle being a metaphor for the confused conceptual situation the philosopher finds themselves in).
24. From reading several other submissions that are mostly wholly opposed to the reforms under consideration, we notice they introduce many incorrect, misleading, and partially enumerated theories, frameworks, and philosophies.
25. CHSA assert that it will be impossible for the Ia Tangata project team to incorporate all this feedback coherently and promptly, given its resource constraints, and this will result in the fly getting stuck in the bottle and a chance to improve the daily lives of transgender people, non-binary people, and people with innate variations of sex characteristics will be missed.
26. The ideological opponents of the reforms have adopted Steve Bannon’s “Flooding the Zone” strategy to overwhelm the Law Commission’s Ia Tangata project team and slow down the progress of the proposed reforms. Countering that requires persistent enunciation of the positive case for reform and cut-through thinking.
27. Conversely, CHSA has been privileged to read numerous draft submissions that comment warmly and positively on the reforms and that are philosophically, sociologically, and legally coherent. Focusing on those will also help the Commission find the way forward. CHSA list the submissions we tautoko later in this document.
28. So, after much consideration and internal discussion, Countering Hate Speech Aotearoa has decided that the greatest value our unique combined skill sets can bring to this joint enterprise is to produce detailed recommendations that will help the Law Commission’s Ia Tangata project team to put the entire project in perspective and relate things back to some first principles.
29. We intend to do this by using a rules-based thinking approach. This technique allows for clarity when dealing with complex strategic thought-spaces. The downside of this approach is that it’s impossible to cover all scenarios, and the process of making law needs to account for the universality of applicability of laws. We are confident the Law Commission can see the edge cases that remain after applying our recommendations.[1]
Transgender people, non-binary people, and people with variations of sex characteristics exist independently of their legal status
30. Any human rights reform must start with sociological observation. Legal reform must be grounded in evidence, and generally, legal codification comes after progress in human rights thinking, which occurs when insightful activists see an unmet human rights need.
31. Countering Hate Speech Aotearoa and several other groups we consulted with think that the Law Commission does not make enough of the fact that the need for this reform ultimately arises because the law currently fails to acknowledge the existence of transgender people, non-binary people, and people with innate variations of sex characteristics. The law is currently erasing the existence of these groups, especially with respect to their human rights.
32. In CHSA’s opinion, in the Ia Tangata issues paper, the Law Commission jumps straight to the fact that transgender people, non-binary people, and people with innate variations of sex characteristics experience discrimination without first acknowledging the epistemically prior fact that these groups of human beings exist. CHSA argues it is necessary to start at the beginning to ground the reforms correctly.
33. For the avoidance of doubt, transgender women are women, transgender men are men, non-binary people are non-binary, and people with innate variations of sex characteristics exist.
34. This leads to CHSA’s core recommendation no 1: The proposed reform must reverse the erasure of these groups in New Zealand’s human rights law. This is a moral wrong that must be righted in and of itself for morally intrinsic reasons. This fact alone is enough to justify the reforms' progress. The Law Commission must include this argument which is currently lacking[2].
Transgender people, non-binary people, and people with innate variations of sex characteristics experience discrimination due to being transgender, non-binary, or having innate variations of sex characteristics. That is enough to proceed with the reform.
35. Having established that Aotearoa’s human rights legal regime is currently erasing the existence of the groups under discussion, the next required step is to clarify whether they experience discrimination because of the quality they hold.
36. CHSA understand that the Law Commission has consulted widely in oral submissions with transgender people, non-binary people, and people with innate variations of sex characteristics to hear their lived experiences of discrimination.
37. CHSA further understand that many individual and organisational submitters in favour of the reform have also discussed their lived experiences as members of the groups under consideration or as friends or family members of people in those groups. CHSA also understand that several medical groups have submitted in favour of the reforms, and they, too, detail the discrimination their clients face.
38. Thus, there is overwhelming sociological evidence that the discrimination that people in the groups under consideration face is real and ongoing. CHSA doesn’t need to supply this evidence in our submission, as many other submitters will have pointed out accurate sociological data derived from within an Aotearoa context, such as the wonderful Counting Ourselves survey.
39. All that is needed for the reforms to progress is for transgender people, non-binary people, and people with innate variations of sex characteristics to experience discrimination that they reasonably attribute to being transgender, non-binary, or having innate variations of sex characteristics. No statistical evidence is required at the group level at this stage to philosophically justify the legal reforms.
40. Thus, in CHSA’s view, the core reforms can proceed solely based on first-hand accounts of discrimination. This point is very important—the Law Commission can rely solely upon individual-level discrimination supported by testimonial evidence.
41. Of course, systemic discrimination at the group level must be examined for the purposes of complete legal reform and public policy issues. To do this, one must consider the question of what the correct comparator group should be. Gender-critical groups maliciously seek to introduce vagaries around this issue into the process at this point to slow the reforms down.
42. CHSA argue that for issues of systemic discrimination, the only comparator groups to be countenanced are trans women to be compared to cisgender women, trans men to cisgender men, and people with innate variations of sex characteristics to be compared to those without innate variations of sex characteristics. This is because transgender women are types of women and transgender men are types of men. People with innate variations of sex characteristics are their own category.
43. Some gender-critical groups argue in their submissions that they have sociological evidence that transgender people, non-binary people, and people with innate variations of sex characteristics do not experience discrimination at either an individual or group level and thus, the reform should not proceed. This view is not supported by the overwhelming evidence and should be discarded (Resist Gender Education argues this in their submission).
44. Some gender-critical groups (Save Women’s Sports Australasia) have argued that the correct comparator for systemic discrimination is for transgender people to be compared to the discrimination experienced compared to those of their apparent gender assigned at birth, i.e. that the discrimination experienced by trans men (who were assigned female at birth) should be compared to the discrimination experienced by cisgender women, and that the discrimination experienced by trans women should be compared to the discrimination experienced by cisgender men. It is unclear in this schema how discrimination towards people with innate variations of sex characteristics would be assessed. This view lacks any connection to the real world, and it can only be viewed as an attempt to slow down the consideration of the reforms by causing the Law Commission to spend time thinking about an absurd idea.
45. This leads to CHSA’s core recommendation no 2: transgender people, non-binary people, and people with innate variations of sex characteristics experience discrimination due to their being transgender, non-binary, or having innate variations of sex characteristics, their first-hand account of it is all that is needed for the current legal reforms under consideration, and that the more complicated issues of systemic discrimination at a group level – whilst needed for policy purposes and maybe some legal edge cases (if they exist) – can be put aside to allow the core reform to proceed.
What sort of things are the proper object of human rights legislation? And are “gender”, “gender identity”, or “innate variations of sex characteristics” such things?
46. Section 21 of the HRA lists all the currently prohibited grounds of discrimination in Aotearoa. It is necessary to commence by stepping back and performing some philosophical analysis on the currently prohibited grounds.
47. Ontologically, what kinds of things are these currently prohibited grounds? Is there a simple philosophical test that determines whether something is the proper kind of thing to be regulated by human rights legislation? This question is central to the proposed reform and must be adequately answered before the rest of the reform can be placed ontologically, epistemically, morally, and legally on top of it.
48. Surely any new addition to this list must have a family resemblance to the other qualities/characteristics. If we are proposing to add “gender”, “gender identity”, or “innate variations of sex characteristics” to s21 of the HRA, then we need to ask this question as a philosophical prior.
49. At first glance, there is no single description that would adequately capture all the current grounds in s21; for instance, how is having a political opinion similar to having a bodily sex? One can change one’s political opinion easily in response to persuasion and argumentation, and politicians spend a lot of time and money exploiting this fact!
50. However, there is one potential avenue of investigation – human rights legislation (and related laws such as those seeking to regulate hate speech) should seek to cover behaviours and interactions that occur between humans in the purely public sphere.
51. We are currently seeing widespread opposition[3] to the current Government’s intention to ban gang patches and insignia in private spaces – this is instructive to the current matter. This purely private sphere appears instinctively to be a space where the human right to self-autonomy, and freedom of thought/expression should be free from governmental interference.
52. In CHSA’s view, the correct subject of human rights legislation is what we necessarily take from our private spaces into the public sphere of society—qualities we can’t easily leave behind when moving from the private to the public without deeply altering or affecting the integrity of our mind, self, or body. This is the closest we can get to defining what counts as the correct object of human rights legislation in CHSA’s view.
53. Sex, race, religious belief, colour, disability, and sexual orientation all seem to fit into that ontological category. We can’t leave any of them behind as we transition from purely private to public spaces. That’s what makes them appropriate to be the subject of human rights legislation.
54. Similarly, it’s clear that “gender” or “gender identity” are enduring personal characteristics that cisgender people, transgender people, and non-binary people have, and people must necessarily carry between public and private spaces.
55. Similarly, ‘innate variations of sex characteristics’ are primary sex characteristics and secondary sex characteristics that we carry between those spaces. Our chromosomes and genes come with us wherever we go.
56. This leads to CHSA’s core recommendation no 3: “gender”, “gender identity, ‘gender expression and ‘innate variations of sex characteristics’, and similar terms are prima facie appropriate terms to be the subject of s21 of the Human Rights Act. Any submission that says they aren’t appropriate prima facie terms to be included in human rights legislation is not serious and should be discounted.
57. The logically subsequent ontological question of whether the terms proposed in 56 can be defined now needs to be examined.
Do “gender”, “gender identity”, or “gender expression” even exist? What kind of thing are they, and can they be defined in law?
58. Countering Hate Speech Aotearoa understand that Speak Up For Women (SUFW) argue that “gender” and “gender identity” must be classed as falling under the pre-existing category of political opinion. This is a wholly nonsensical assertion designed to lead the Ia Tangata project team down a time-consuming rabbit hole; there is no political dysphoria in the DSM-5 or ICD-11, nor does one seek out political-affirming care. It’s a philosophical category error.
59. Further, SUFW's argument that they are to be considered political opinions is an own goal since the category of political opinion is already covered under the HRA in s21. Thus, their submission is something of a Schrödinger’s cat of a proposal as it simultaneously has gender both as a protected ground and not a protected ground and, furthermore, has so many exceptions as to make any reforms philosophically and legally meaningless.
60. It may seem odd to even be entertaining the questions of whether “gender”, “gender identity”, “gender expression”, etc., exist, but many opponents of the reform, like the highly transphobic Free Speech Union NZ (FSU), are fond of using the phrase “gender ideology” to muddy the waters.
61. Putting these things under the umbrella context of “gender ideology” is a highly malicious rhetorical move to place them on an unsteady ontological footing and make people doubt their concreteness as concepts – if they are not concrete concepts, then they can’t be the legitimate subject of reform or human rights legislation or discussion (or anything else substantial for that matter). This is what the FSU want for their political purposes – for discrimination against the groups under consideration to be legal so the FSU’s core ideological project of ensuring that extractive neo-liberalism can remain in place unhindered and unfettered in Aotearoa. They have no interest in promoting the human rights of the groups discussed in these reforms.
62. The corpus of academic work on gender, gender identity, and gender expression is extensive. There is no time to review it here.
63. The impressive transfeminine jurist, bioethicist, public speaker, and advocate Florence Ashley is currently the leading thinker on issues of gender identity, medical ethics, and the law in NZ-like jurisdictions. CHSA has relied on their entire body of work to shape the thinking that went into our submission.
64. The interested reader might like to start by reading their highly acclaimed Gender/Fucking: The Pleasures and Politics of Living in a Gendered Body and move on to the rest of their work. All of their work can be found at florenceashley.com.
65. Gender already appears as a concept in at least three places in statute in the New Zealand legal system.
a. First, it appears as a ground for obtaining an order in the Harmful Digital Communication Act (HDCA). The author has direct experience of obtaining an order using this ground, and on that occasion the Judge did not have any problem using this concept in an everyday legal setting.
b. Secondly, gender identity appears as an aggravating factor for sentencing in section 9(1)(h) of the Sentencing Act 2002. Once again, the legal fraternity has no problem interpreting the gender identity of a victim when sentencing.
c. Thirdly, gender identity appears as a wholly central concept in the Conversion Practices Prohibition Legislation Act.
66. Similarly, overseas legal systems that are like ours successfully employ phrases like “gender,” “gender identity,” and “gender expression.” The Law Commission discusses this superbly in the Ia Tangata issues paper, as does Florence Ashley in their work.
67. SUFW argue in their submission that gender identity is intrinsically too highly subjective for use in a legal context and can’t be defined well enough for use in legal contexts. Given our points above, this is clearly not the case. Any proposal that seeks to argue this should be discounted. Respectfully, the Ia Tangata project team does not have time to waste pursuing clearly false ideas that are being weaponised to slow the reforms down.
68. This leads to CHSA’s core recommendation no. 4: “Gender”, “Gender Identity”, “Gender Expression”, and other similar terms that may be preferred by submitters on this reform are their own ontological category and must be considered as such, not as a derivative category of any other protected characteristic. Any submission that argues otherwise is philosophically confused and should be rejected.
69. This leads to CHSA’s core recommendation no. 5: “Gender”, “Gender Identity”, and “Gender Expression” can be defined and are usable legal terms in the context of Aotearoa’s legal system. Any submission that argues otherwise by asserting they are subjective must also account for all the other subjective terms (like “any reasonable person” or “beyond reasonable doubt”) that the legal system uses every day without coming to a grinding halt.
Do ‘innate variations of sex characteristics’ exist, what kind of thing are they and can they be defined in law?
70. For reasons we will subsequently discuss, transgender men, non-binary people and people with innate variations of sex characteristics suffer from a lack of discussion in the wider debate around these reforms. In particular, the rights and existence of transgender men are often discounted and diminished in the debate around the current reforms.
71. For people with innate variations of sex characteristics, the law is biased towards more concrete observations and privileges science as an epistemic category over sociological observations.
72. Thus, the debate of whether innate variations of sex characteristics can be defined and included in s21 is simpler.
73. There are currently six known chromosomal variations of human beings that result in live births. It is CHSA’s understanding that in addition to that, there are further genetic interplays that determine how secondary sexual characteristics and other aspects of phenotypical expression will develop. There is no complete scientific accounting of this at present, i.e. not all known genetic pathways on top of the chromosomal variations are understood or elucidated. So, we are necessarily putting a concept into law where the understanding is incomplete and will evolve.
74. This leads to CHSA’s core recommendation no 6: innate variations of sexual characteristics exist, they can be defined, their scientific nature is still evolving, and are usable legal terms. Any proposal arguing otherwise should be discounted as clearly being at odds with current scientific consensus and, thus, would not add anything to this reform.
Why were transgender people, non-binary people, and people with innate variations of sex characteristics not originally included in s21 of the Human Rights Act?
75. To continue our Wittgensteinian metaphor, we need to figure out why the fly got stuck in the fly bottle before we can show it the way out.
76. The United Nation’s Convention for the Elimination of All Forms of Discrimination against Women (CEDAW) and the International Covenant on Civil and Political Rights (ICCPR) were, by far, the two most important events in codifying multilateral treaty-based international advances in human rights into local legal and political systems in the later part of the 20th century.
77. CEDAW was focused on the elevation of the status of women to be closer to men by ending all forms of discrimination towards women. Its focus was not to reduce the status of men to the lower status of women.
78. Given the fact that it needed to be universal and acceptable to all the member countries of the United Nations, the language used in CEDAW was necessarily sex-based. This also reflected the social mores of the time.
79. Second- and third-wave feminism were also the dominant women’s rights movements during the later part of the 20th century. Their language was also (initially) sex-based.
80. CHSA’s understanding from discussions with politicians and human rights professionals with knowledge of that time is that in 1993, the focus was on codifying our obligations under CEDAW and ICCPR into local law. Little consideration was given to gender, given where society was at the time with this issue. For reference, the highly visible transgender woman Georgina Beyer wasn’t elected as Mayor of Carterton until 1995.
81. CHSA will argue in the next section that Aotearoa is now ahead of the curve because we have 18 years of experience living under the Crown Law 2006 opinion.
82. The exceptions for the prohibited grounds of discrimination in s21 in the Human Rights Act are also based on social mores and attitudes of Aotearoa in the early nineties.
83. Whilst having a deep respect for the Ia Tangata project team’s mahi, CHSA thinks that the Ia Tangata project team’s method of rigorously enumerating and analysing each of the existing exceptions and how they should be handled in this reform is highly cumbersome and unwieldy. A better approach would have been to look at the matter afresh and start de novo about what exceptions should apply using fresh sociological data and the new paradigm. It’s probably too late in the process to change this approach. However, CHSA will adopt this line of thinking to help the Commission and give the project team another way to free the fly from the bottle.
The Crown Law 2006 Opinion: 18 years of transgender rights
84. In CHSA’s opinion, the Law Commission‘s Ia Tangata issues paper severely understates the effect that the Crown Law 2006 opinion has had on our society and legal system and does not examine this reform in nearly enough depth.
85. In CHSA’s opinion, this is because ever since 2006, the public sector, the executive, the legislative branch, private companies, the Human Rights Commission, and the courts have all made policy or behaved as if the Crown Law 2006 opinion was valid and true.
86. The Attorney General at the time of the Crown Law 2006 opinion, Sir Michael Cullen, was convinced of the validity of the opinion and persuaded all political parties of the time, including the now gender-critical Rt Hon Winston Peters, of that fact.
87. As is well noted and as the Law Commission points out, the opinion has not been tested in a court of competent jurisdiction: namely the New Zealand High Court or the Human Rights Review Tribunal. Thus, transgender people, non-binary people, and people with innate variations of sex characteristics currently exist in a legally liminal space with no explicit protections against discrimination. This fact means that progressing these reforms with urgency is warranted.
88. Interestingly, though, several of the legal arguments, opinions, and cases put forward in the Crown Law 2006 opinion have been further tested and analysed in overseas jurisdictions and continue to support support the opinion’s general conclusions.
89. All the locally active gender-critical groups seek to downplay point 85 above or ignore it completely in the misguided hope this highly inconvenient fact (for them) will go away.
90. Despite extensive investigation, CHSA cannot find an instance where a government department, public sector agency, or executive branch decision maker has made a policy or law that conflicts with the Crown Law 2006 opinion during the period 2006-2024. We are happy to be shown otherwise during the submission process.
91. Given the 18 years of uninterrupted coverage of the Crown Law 2006 opinion, this author is extremely dismayed at the recent appointment of Human Rights Commissioners who do not believe in that opinion. He is therefore seeking a Judicial Review of those appointments.
92. One area where the Crown Law 2006 opinion is not at all helpful or instructive is in providing a framework for conflict between sex-based and gender-based rights when that occurs. As mentioned above, CHSA thinks the Ia Tangata project team have erred somewhat (or at least created a more circuitous route for themselves and the reform) by taking the existing exceptions and asking for commentary on them rather than starting again with the question “what exceptions make sense now after 18 years of experience in the Crown Law 2006 regime?”.
93. Since 2006 the following have happened in Aotearoa:
a. Transgender people, non-binary people, and people with innate variations of sex characteristics have used the single-sex spaces that best align with their gender identity without breaking the law. This is generally accepted societal practice now.
b. The BDMRR bill was passed to allow sex self-id. This fact is highly relevant to the current reforms because it means enforcement of sex-based exceptions is impossible without the unjustifiable disclosure of personal medical data.
c. The Conversion Practices Prohibition Legislation Act (CPPLA) outlaws gender conversion therapy practices. This further reinforces the fact that “gender” and “gender identity” are innate personal characteristics that are the correct subject of human rights legislation (because we have said it is illegal to coerce people to change them.) Interestingly, from a philosophical and legal perspective, the foundations of the CCPLA somewhat presuppose the Crown Law 2006 opinion and further reinforce CHSA’s arguments in this entire section.
94. This leads to CHSA’s core recommendation no 7: The Ia Tangata project team must not recommend any reversal of the protections currently inferred to be guaranteed under the Crown Law 2006 opinion, and any submission that argues for a pre-Crown Law 2006 baseline is not to be countenanced unless it shows that 18 years of acting as if the Crown Law 2006 opinion were true has moved society backwards in some concrete respect and has accompanying sociological data. As we mentioned in our preamble, there is no political will in the legislature for this to occur, outside of one minor party.
Moving from a sex-based paradigm to a gender-based paradigm
95. CHSA’s submission to the Law Commission explicitly and intentionally proposes a human rights framework based on the new paradigm of gender, gender identity, or innate variations of sex characteristics over the old paradigm of sex-based thinking. CHSA’s thinking is trans-maximalist. The reforms should not only seek to right an existing injustice (the non-inclusion of gender, gender identity, and innate variations of sex characteristics in the HRA in 1993) but should seek to provide a legal platform for transgender people, non-binary people, and people with innate variations of sex characteristics to experience life fully.
96. The Human Rights Act—which is the correct place for the current reforms to be placed, not within the Bill of Rights Act (BORA)—is consistently interpreted as being given priority when in conflict with other laws due to the philosophical fact that human rights are somewhat more fundamental in the legal system.
97. CHSA asserts that the current Human Rights Act grounded in the old paradigm gifted to us by CEDAW and the late 20th-century human rights and women’s rights movements is no longer fit for purpose and will not serve us at all in the upcoming century of uterus transplants, 3D bio-printed penises, further identification of more innate variations of sex characteristics, and CRISPR genetic editing.
98. CHSA argues that Aotearoa is (or was) ahead of the curve in adopting transgender rights compared to many other countries that also adopted CEDAW and ICCPR because of the Crown Law 2006 opinion. Recently, though, protections have been under threat from extremely well-financed international gender-critical movements that view Aotearoa’s progress in this area as a canary in the coal mine.
99. Moving from a legal and social framework that privileges sex-based definitions and thinking towards a legal and social framework that privileges gender-based definitions is akin to moving from classical mechanics to quantum mechanics. You need to leave the language of the old paradigm behind and embrace the new one. This is difficult to comprehend. This is one reason why many people who are not transgender, non-binary, or have innate variations in sex characteristics have difficulty embracing the new way forward in the transition under discussion.[4]
100. In Aotearoa, we are currently 18 years into this transition phase between the paradigms.
101. We have 18 years of sociological data from Aotearoa during this time – that is a whole generation coming up through the school system from creche to starting university.
102. The sky has not fallen in during this time, but the data shows that discrimination towards transgender people, non-binary people, and people with innate variations of sex characteristics still occurs, and as such, these groups need to be legally protected from that discrimination with urgency.
103. In Aotearoa, schools, workplaces, hospitals, universities, government departments, and the Courts all continued to function continuously during this transition phase (2006 to 2024).
104. However, during this time, gender-critical activists and organisations have become more vocal, extreme, bigoted, and increasingly aligned with the far-right. Notably, offshore activists seek to influence the unique situation in Aotearoa. A good example of this is Ms Sall Grover, who CHSA understands made an oral submission via video conf during the Women’s Rights Party (WRP) oral submission. We know this as the WRP publicly mentioned this afterwards. Ms. Grover has no interest in our unique Aotearoa context except to further her own gender-critical project in Australia. Her submission should be discounted (per the Law Commission’s own guidance saying it will not countenance overseas submissions).
105. A full sociological analysis of the various groups in the trans-exclusionary radical feminist, transphobic, far-right, and gender-critical movements is outside the scope of CHSA’s submission and wouldn’t necessarily propel the Commission’s work forward.
106. However, to counter these groups who seek to deny the proposed reforms for essentially political reasons, the Law Commission must adhere to the central principle that law reform must be evidence-based and grounded in human rights and legal theory. This point came through strongly in our own consultations with other human rights groups that support the reforms.
107. The Law Commission’s Ia Tangata report needs to examine the data from this transitional period in more detail to see if there is any signal in this data that would lead us to abandon the direction of travel of this human rights revolution.
108. CHSA argue strongly that the data does not provide such a signal, and the direction of progress the current human rights reform Ia Tangata proposes needs to be maintained, if not intensified. It’s currently a human rights emergency that transgender people, non-binary people, and people with innate variations of sex characteristics do not have explicit protection and this reform needs to be completed with an appropriate level of urgency. This will require quickly triaging the submissions and de-prioritising those submissions that seek to slow down the process by weaponising absurd arguments that are specifically designed to slow the Ia Tangata project team down.
109. 18 years is also long enough to discern whether a Nicholas Nassim Taleb-type ‘black swan’ event might have been caused by the 2006 reforms.
110. Society is much more likely to collapse for other reasons than from adopting human rights protection for transgender people, non-binary people, and people with innate variations in sex characteristics – several European countries have had gender identity in their human rights law for a long period without any negative democratic or societal impacts.
111. CHSA think that a contributing factor to this increase in bigotry from gender-critical groups might be the lack of clarity around where sex-based exceptions should, or could still apply. These groups also clearly think (from multiple public discussions on X and elsewhere) that the amazing work of some of the older women’s rights activists, like Ms Sandra Coney QSO, a signatory to the Feminist Older Women Lobbyists (FOWL) submission, will be undone by the proposed Ia Tangata reform. This is demonstrably false-the reforms will not result in an undoing of the substantial progress on the big issues in women’s rights already made, such as reduction in gender-based violence (Women’s Refuge makes this point in their submission), gender pay inequity, the issue of women’s unpaid labour, women’s continued access to reproductive healthcare, and complete determination over their reproductive lives[5]. In fact, the growing alignment of gender-critical groups with the Christian far-right is a much greater threat to the progress previously made on all of these issues-especially access to abortion. The Women’s Refuge NZ’s submission is highly instructive in this area, and CHSA tautokos its superb statement on the nature of contemporary feminism and the current reforms.
112. CHSA’s main comment on the FOWL submission is that it is highly confused and does not start firmly from the premise that transgender people, non-binary people, and people with innate variations of sex characteristics exist and, therefore, need to be included in our human rights law. They seek to introduce psychiatric complications into the debate, which are out of scope.
113. Just to reinforce that point, any submission that seeks to veer off-piste into questions of gender dysphoria; the status of gender in psychiatry; argues that this reform isn’t a real problem because it’s just mostly people suffering from rapid-onset gender dysphoria (which doesn’t exist); that adopting the reform will cause further social contagion and therefore make more people transgender (the social contagion theory is roundly refuted by multiple academics in peer-reviewed papers); or that somehow the reforms will result in gender-affirming care being too-widely accessible should be ignored. The scope of these reforms is whether transgender people, non-binary people, and people with innate variations of sex characteristics deserve human rights protection against discrimination. Issues of the relationship between gender, the health system, and access to gender-affirming care are out of the scope of the Ia Tangata current project.
114. Similarly, any submission that veers into trans-medicalism should be ignored. This is at odds with the BDMRR reform, and this issue was discussed at the time of that significant reform.
115. The second half of the Ia Tangata report is mostly around exceptions, and the interplay of any proposed reforms to do with gender with the wider human rights regime and other legal issues such as hate speech. CHSA will first examine whether any exceptions should be included in the proposed update to the Human Rights Act to account for the new paradigm of the primacy of gender-based thinking. CHSA will then examine how the Law Commission should handle the interplay between any of the proposed reforms and the wider legal system and focus on how the interplay with hate speech/freedom of expression laws should work.
116. CHSA would also like to make the point that the Law Commission doesn’t need to account for every single interplay between the proposed reforms and wider legal principles – of course, that is what the Law Commission excels at – but this human rights reform would be so core to the human rights act and has many potential downstream interplays that CHSA thinks that judges are well placed to resolve these issues. If any intractable contradiction is discovered down the line, it can be referred back to the legislature as currently happens to get resolved. The core reform must proceed.
All exceptions should be eliminated—except for elite, competitive sports. Any other exception regime would be completely unworkable, unenforceable and, therefore, legally pointless.
117. In CHSA’s view, all currently existing exceptions in the Human Rights Act relating to sex and gender should be removed, except for elite, competitive sports. The HRA reforms should be worded so that the sporting bodies make the rules concerning eligibility to compete in certain categories. The science in this area is not settled; it is evolving, and codifying this in law would be a mistake.
118. To avoid doubt, CHSA does not want this exception to apply to community or school sports; it should apply only to the elite level.
119. Elite sportspeople would have to agree to medical testing or to give their medical data to sporting bodies in return for access to the arena of competition. They are free to make that tradeoff.
120. The main reason for CHSA’s extremely minimalist approach to any proposed exceptions is that we have determined that there is no realistic, real-world way to enforce any of the exceptions given the BDMRR reforms. Every single approach to enforcement creates a much worse problem – typically in the forced disclosure of highly personal medical data or forcing people to undergo compulsory medical tests. That will simply be wholly unacceptable to a significant part of Aotearoa’s population – entire parliamentary occupations have been started for similar concerns!
121. To take one utterly Kafkaesque proposal as an example, to enforce their litany of unnecessary sex-based exceptions in post-BDMRR Aotearoa, SUFW argues that it will be logically necessary to undertake expensive compulsory chromosomal testing of newborns. They don’t consider whether the rest of the population would be forced to undergo such an invasive procedure as well, so there is chromosomal data on everyone (data would be needed on everyone). Additionally, they don’t consider how one would be forced to carry such information with them (on the blockchain perhaps or a tattooed QR code), under what circumstances you would need to show this sex passport to people/authorities, and who else would have access to it. Also, this chromosomal testing wouldn’t even solve the problem, given innate variations of sex characteristics. Their bigotry has blinded them to scientific facts, legal principles, medical ethics, economics, and issues of basic practicality.
122. In this vein, any proposal to enforce an exception regime that required the disclosure of your (apparent) birth sex, any history of gender-affirming care, chromosomal status, or other medical information to any third party is completely unworkable and goes against all existing social and legal practices relating to personal health information. Any submission that argues for this (as many we have seen do) should also not be considered.
123. Similarly, any attempt to argue that the sex self-id BDMRR reforms should be reversed should be rejected as being out of the scope of the current Ia Tangata project.
124. As mentioned, the Ia Tangata project team clearly has limited time and resources to examine all the submissions. We trust that CHSA’s meta-level observations can assist when triaging all the responses—that is, ultimately, why we are offering them and trying to ground our suggestions in the evidence that we have gathered, and our detailed knowledge of the counter-arguments opponents to the reform are weaponising to prevent its progress.
125. This leads to CHSA’s core recommendation no 8: Elite, competitive sports should be the only subject for an exception in the proposed reforms. Individual sporting bodies should be allowed to make the rules, and this exception should not apply to community-level sports.
Some problems that don’t exist or that shouldn’t be the subject of legal interventions
126. CHSA is only one organisation with currently limited (but quickly expanding) resources. Over the last year, we have consulted widely across the human rights and social sectors in Aotearoa in developing our submission, and we discussed a multitude of possible exceptions internally and externally. None met the incredibly high bar for inclusion in the proposed law reforms.
127. CHSA thinks it is important to point out to the Commission that some problems submitters present that they argue mean that an exception in legislation is required are not problems that the law needs to address. The law doesn’t need to address every societal issue. These pseudo-problems often occur in the intersection of public and private spheres.
128. A highly instructive example of this is the recent case in Australia of Tickle v Giggle. The facts will be well known to the Ia Tangata project team, so I won’t outline them here. Highly successful competing dating apps such as Bumble and Grindr allow you to specify whether you are cisgender, transgender, non-binary, genderqueer, or indeed whatever gender you want (Grindr). You can simply swipe left if you don’t want to match with someone (Bumble) or block someone if you don’t want to see them on your grid (Grindr). On those apps, you are completely in control of your preferences. If someone is not your preferred gender, you can swipe left/block, and in any event, you can ask someone if they are cis, trans or non-binary in any ensuing conversation. End. Of. Story.
129. Bumble and Grindr are both highly profitable and have millions of happy, satisfied users – clearly their user experience works. Diluting human rights law reform to take account of an edge case that isn’t at all grounded in sociological data doesn’t make sense. Once again, this all puts aside the question of verification of such personal health data – Giggle’s solution was to use modern-day phrenology. If the Giggle app had a large waitlist or userbase, then maybe there would be a case for including it as a problem to be solved, but as CHSA understands, the app isn’t even live or functional at present.
130. There is a whole class of pseudo-problems that don’t require solutions in human rights law and revolve purely around the private sphere. CHSA urge the Ia Tangata project team to be on the lookout for them.
131. This leads to CHSA’s core recommendation no. 9: the Ia Tangata project team must be alert to pseudo-problems that do not need to be examined or become the focus of exceptions in the proposed HRA reforms. Opponents of the reform are deliberately using this technique to slow it down.
More about the unique context of Aotearoa
132. To return to CHSA’s starting point that it is necessary to “situate the situated,” the proposed reforms exist in the unique context that envelops us all here in Aotearoa—the context of Te Tiriti o Waitangi and the more recently elevated status of tikanga in our legal system.
133. The Ia Tangata project team has done an excellent job of discussing these points in the issues paper, as they also do when discussing the wider topic of how sex and gender are treated in both pre- and post-colonial Māori society. CHSA found this discussion particularly interesting, enlightening, and instructive.
134. Although CHSA has considerable expertise in Te ao Māori and tikanga sitting within our advisory group, CHSA has chosen not to centre these topics in our submission as we understand several leading Māori legal scholars and practising lawyers are submitting broadly in favour of the proposed reforms, and their voices should be privileged as experts in this area. This is one area where the Commission does need to be necessarily legalistic, and if any further exceptions come out of this analysis, then CHSA will be interested to see them in the final Ia Tangata report.
135. Several other uniquely New Zealand aspects of the proposed reform must be preserved and/or considered.
136. As previously mentioned, any submission that does not take into account the period 2006-2024, when the Crown Law 2006 opinion was in operation, needs to have a compelling reason for doing so.
137. A corollary of 136 is that, in CHSA’s opinion, the voices of Aotearoa’s youth should be privileged in the current process. The current generation of younger people intuitively understands the new paradigm. They are completely down with it and know how to navigate these issues.
138. A further corollary of 136 is that, in CHSA’s opinion, the voices of people who have benefitted from significant human rights reform during their lives and who now seek to deny the benefit of reforms to the younger generation for demonstrable reasons of bigotry should have their views de-privileged. This is also broadly in line with the forward-looking characteristic of human rights law.
139. CHSA urges the Ia Tangata project team to enforce its prohibition on submissions from non-New Zealand actors rigorously. CHSA’s intelligence is that several organisations have organised en masse submissions from overseas. They should be easy to spot as they will not privilege our unique situation or context.
140. An interesting situation that might arise for the Ia Tangata project team is if the United Nations or the United Nations’s Special Rapporteur (Reem Alsalem) on violence against women and girls makes a submission on the current reforms.
141. Ms Alsalem’s recent comments on legal matters in Australia have been singularly unhelpful in progressing the rights of transgender people, non-binary people, and people with innate variations of sex characteristics, and if she took a similar approach to any submission to Ia Tangata, it would completely miss the unique context this proposed reform occurs within.
142. Comity between the New Zealand Government and the United Nations might be extended to include any submission from Ms Alsalem as a unique exception. No other submitters from offshore must be countenanced.
143. This leads to CHSA’s core recommendation no 10: the Ia Tangata project team must enforce its prohibition on overseas submitters who seek to import non-applicable overseas contexts into Aotearoa.
Interplay between the current proposed reforms and hate speech laws.
144. The Free Speech Union NZ undertook a well-financed disinformation campaign designed to derail the reform process, saying that the Ia Tangata project was an attempt by stealth from the Law Commission to examine the issue of hate speech law reform when the Government had already directed the Law Commission to abandon that proposed project. This is clearly not the case.
145. This disinformation campaign focused on the areas of misgendering, deadnaming, outing, and the expression of gender-critical beliefs. It should be noted that the Ia Tangata project team does not ask for feedback on “outing” at all.
146. CHSA understands their disinformation campaign resulted in many submissions.
147. CHSA wants to make the following observations on the interplay between any proposed reforms to the HRA and hate speech/freedom of expression considerations. This will help the Ia Tangata project team triage submissions generated by the FSU’s disinformation.
148. Aotearoa does not have a coherent, unified approach to hate speech legislation, and it is highly unfortunate that the current Government chose not to allow the Law Commission to proceed with its proposed investigation.
149. For issues of intentional deadnaming and misgendering in online contexts (which covers many real-world day-to-day scenarios), it is already possible to get an order under the Harmful Digital Communications Act. Any proposed reform of the HRA would not affect that.
150. Internal human resources processes deal with intentional deadnaming and misgendering in employment contexts, and any proposed reform of the HRA would not affect that.
151. In the context of schools, intentional deadnaming and misgendering by teachers of students is already cause for censure under the Teaching Council’s code of conduct for teachers. Any proposed reform of the HRA would not affect that.
152. In medical settings, almost all NZ medical bodies have explicit rules about deadnaming, misgendering, respecting people’s preferred gender identities, and the expression of gender-critical beliefs. Any proposed reform of the HRA would not affect that.
153. So that just leaves the issue of intentional misgendering and deadnaming in purely public settings. What happens if someone you know deliberately misgenders/deadnames you during a discussion on Lambton Quay? CHSA will leave it up to other pro-reform submitters to offer solutions here. CHSA do not want this issue to derail the wider reform.
154. Lastly in this section, and somewhat ironically, for an organisation called Countering Hate Speech Aotearoa, we think the wider question of whether expressing a gender-critical belief is hate speech should not be considered at this time and should be examined as part of future hate speech law reform. This effectively neutralises that issue for the Ia Tangata project. The work in hand is to address the current erasure of our transgender, non-binary and intersex whanau from our extant human rights regime, not to expand the Ia Tangata project scope to include hate speech.
Other interplays between the current proposed reforms and the wider legal system.
155. In terms of wider interplays between the proposed reforms and the rest of Aotearoa’s legal system, CHSA want to recap our over-arching approach to reform for the avoidance of doubt:
a. Section 21 of the Human Rights Act should be amended using symmetrical options.
b. It should be explicit that the new gender-based terms (and innate variations of sex characteristics) should be prioritised in any legal conflict with the old sex-based paradigm.
c. The current exceptions in the rest of the Human Rights Act should all be deleted.
d. The exception concerning elite, competitive sports should be inserted.
e. Any necessary changes due to treaty and tikanga-based considerations should be managed in line with the submissions from esteemed Māori legal scholars and experts.
f. Explicit provisions for misgendering and deadnaming could be included if the other submitters argue for them, and the Law Commission can elegantly include them without slowly down the core reform.
g. The issue of freedom of expression concerning gender-critical beliefs should not be considered part of the scope of this reform. (That is for a future discussion between CHSA and the Law Commission that CHSA very much looks forward to having soon. We continue to argue with politicians for their work to be restarted.)
156. The leads to CHSA’s core recommendation no 11: the Ia Tangata project team does not need to account for every interplay between the current proposed reforms and the entire legal system. We have judges to interpret the law and recourse back to the legislature if an intractable contradiction is found in the future.
Wrapping it up
157. CHSA wants to tautoko the following submissions:
a. Rainbow Support Collective (RSC) – especially on any technical matters we haven’t discussed on proposed wordings of s21.
b. The Rainbow Greens
c. InsideOut
d. Gender Minorities Aotearoa
e. Wellington Pride Festival
f. Women’s Refuge NZ
g. Tīwhanawhana
158. CHSA has no knowledge whether they have submitted to the Law Commission, but should Dr. Elizabeth Kerekere have submitted, we undoubtedly tautoko their submission wholeheartedly.
159. The author thanks the CHSA advisory group for being generally brilliant and exceedingly forthright with their feedback.
160. If CHSA has not shown the Law Commission’s Ia Tangata project team a clear path to showing the fly the way out of the fly bottle, that fact rests solely with the main author, not the CHSA advisory group.
161. The author can be contacted at paul@chsa.nz
162. Countering Hate Speech Aotearoa looks forward with immense interest to seeing the result of the Commission’s consultations.
[1] The author wishes to thank the master strategists Professor Julian Birkinshaw, Professor Jessica Spungin, and Stefano Turconi of London Business School for introducing the author to this highly effective approach.
[2] The author also wishes to thank all the participants of the CHSA submission writing workshops where this point came through strongly in discussion.
[3] CHSA and the FSU strangely find themselves in agreement on this issue.
[4] Quantum mechanics argues that something can be in two places at once but observable only in one place at a time – this is, of course, inconceivable to classical physics and physicists.
[5] The author profusely apologises to transgender men as this is one of the areas where transgender men are erased from this discussion.