It's a good time to republish this letter to the AG re sports.

Paul Thistoll

paul@chsa.nz

VIA EMAIL 

Saturday 21^th September 2024

Hon. Judith Collins KC

Attorney-General of New Zealand

j.collins@ministers.govt.nz

VIA EMAIL

Tēnā koe Hon. Ms. Collins KC,

Re: The status of the 2006 Crown Law opinion concerning transgender rights and the Coalition Government

My name is Paul Thistoll, and I head Countering Hate Speech Aotearoa (CHSA). CHSA is a progressive, nonpartisan, charitable initiative that promotes legislation against hate speech in Aotearoa, supports 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 people, non-binary people, and people with innate variations of sex characteristics. We also have a focus on human rights more generally.

We are not writing to you today concerning hate speech law reform which we understand is not on the Coalition Government’s current legislative agenda but on the broader topic of human rights in Aotearoa New Zealand. Specifically, we respectfully remind you that a Crown Law opinion from 2006 argues that ‘gender identity’ is currently one of the prohibited grounds of discrimination in section 21 of the Human Rights Act 1993 (HRA). We are gravely concerned that the Government may summarily abrogate the rights of transgender people, non-binary people, and people with innate variations of sex characteristics by ceasing to observe this ruling.

It is clear to any serious observer of politics in New Zealand that throughout your storied and distinguished career – first, as a lawyer, then as a lawmaker, and now as the Government’s most senior legal officer – that you have always sought to uphold legal and democratic norms. We hold different political orientations but your consistent respect for the law, the legal system, your current office, and the office of the Solicitor-General is well documented. Your personal voting history consistently favouring expanding human rights protections is also a matter of public parliamentary record.

Part of these legal norms is the government’s respect for the views of the Solicitor-General and the office of Crown Law. And, in line with that respect, ever since 2006 the public sector, the executive, the legislative branch, the Human Rights Commission, and the Courts have all made policy or behaved as if the Crown Law 2006 opinion was valid. The private sector has also mostly acted in line with the opinion, especially concerning employment issues.

Contemporaneously, the Law Commission / Te Aka Matua o te Ture has recently closed out the submission period for its 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. This review was allowed to progress by the coalition (in contrast to the review of hate speech laws) and is expected to report back to your colleague the Hon. Paul Goldsmith next year. Since the Coalition Government allowed this to proceed there is wide hope and expectation in the human rights community that the Government will engage positively with the final report.

The Ia Tangata project’s Issues Paper that formed the basis for the consultation said that the Law Commission had already reached a preliminary view that the HRA needed to be amended to make protections for transgender people, non-binary people, and people with innate variations of sex characteristics explicit. Thus, we have an insight into the Commission’s broad direction of thinking on this issue which can guide us all in the interim.

As part of our submission to the Ia Tangata project, we spent considerable effort examining whether at any time in the period 2006-2024 the public sector, the executive, the legislative branch, the Human Rights Commission, or the Courts undertook any action which didn’t adhere to the Crown Law 2006 opinion. We could not find an example. Of course, part of the reason for the Ia Tangata project was that the opinion has not been tested at the Human Rights Review Tribunal (HRRT) or any other legal venue. Two cases are coming up to be heard in 2025/2026 which will require the Crown Law 2006 opinion to be looked at by the HRRT.

Yet, from public comments made by the gender-critical group Save Women’s Sports Australasia, we are aware that the Minister of Sport - the Hon. Chris Bishop - may be seeking imminently to undertake a review of the rules and regulations relating to community/school sports and how transgender people, non-binary people, and people with innate variations of sex characteristics are allowed to participate.

Whether intentionally or not, your ministerial colleague may seek to undermine the Crown Law 2006 opinion before the results of the Law Commission’s review are presented back to the Minister of Justice. Of course, after the delivery of the Law Commission’s report, it becomes a more political process about whether to adopt the recommendations of the Ia Tangata project. And that seems, to us, to be the proper approach as the role of the Law Commission is precisely to examine complicated legal issues. After the report comes back to the Minister of Justice then potential legislative changes can be considered in order to make rights explicit in the HRA for the groups under consideration.

Furthermore, as part of our submission to Ia Tangata the CHSA team spent a considerable amount of time thinking about how the law could practically accommodate (a) the gender-critical views of SWSA and other groups like Speak Up for Women, and (b) the intrinsically moral fact that transgender people, non-binary people, and people with innate variations of sex characteristics must have human rights and be free from discrimination. Our position is that there is no way to reconcile gender-critical views with human rights protections for these groups without undoing existing laws and opinions or denying the human rights protections. We are currently at an impasse. The way forward is essentially political - as most things ultimately are - when human rights progress is codified into law.

It is our view that Aotearoa New Zealand is moving from a period where the priority of sex in human rights law must give way to a new paradigm that should explicitly prioritise the concept of gender. The Law Commission’s work as well as the views of activists like CHSA is needed to help show the way forward. Groups that are backward-looking like SWSA and SUFW do not offer any viable, practicable, and implementable legal or policy path forward.

In particular, it is our position that there are no workable practical frameworks for accommodating the views of gender-critical sex realist groups concerning community/school-level sports and thus, as we say in our submission, no exception for sports at this level should be included in Ia Tangata’s final report. As the Minister for Sport will find once he examines this issue, in our analysis the current regulations rest on three main legal planks:

(i)                            The Crown Law 2006 opinion,

(ii)                         The Birth, Deaths, Marriages, and Relationships Registration Act 2021 (commonly referred to as sex self-id), and

(iii)                       All our laws and regulations around medico-legal issues such as health information privacy and compulsory medical testing.

In our analysis, one would need to undermine at least two of these planks to make any exception workable at the community/school level. The easiest plank to undo is the Crown Law 2006 opinion and the gender-critical groups want the Coalition Government to undermine the Crown Law 2006 opinion pre-emptively to do an end-run around the Law Commission’s current process. They are doing this because they seek to impede the progress of human rights in Aotearoa for reasons of bigotry.

In our analysis effectively implementing the gender-critical view in lower-level sports would require:

(a)       Compulsory chromosomal/genetic testing,[1]

(b)      Adoption of ‘sex’ passports,

(c)       Disclosure of other medical information, and

(d)      Undoing the Crown Law 2006 opinion.

These reforms would be highly unpalatable to various groups and would require tens of millions of dollars of expenditure on the Government’s behalf to establish the infrastructure to make the whole thing work. They simply are not serious options in a free and open society. Your esteemed colleague the Hon. Ms. Willis currently has no line item for expenditure in the coalition’s budget to establish a Sex ID division at the Department of Internal Affairs. Sex passports would also seem to fall foul of the coalition’s current attitudes towards minimising regulations, and compulsory chromosomal testing of newborns or school-age athletes could give rise to another parliamentary occupation!

The situation with elite, competitive sports can remain unchanged whilst the Government waits for the Law Commission to report back. Elite athletes are free to disclose their medical information and undergo medical testing because they make that choice freely as a trade-off to gain access to the competitive arena. As currently happens, elite sporting bodies are given leeway to make their own rules about sex, gender, innate variations of sex characteristics, and things like individual medical histories including history of gender-affirming care of athletes.

All of this, combined with the fact that Minister Goldsmith has just appointed two human rights commissioners who may not seek to uphold the Crown Law 2006 opinion because of their well-known gender-critical beliefs, gives the wider LGBTQIA+ and human rights communities significant cause for concern about what might happen next with the coalition with regards to human rights for the groups under consideration.

Thus, we are writing to seek your firm assurance that during the period from now until the Law Commission’s Ia Tangata project reports back and any recommended law change is cemented, the Coalition Government will seek to act per the Crown Law 2006 opinion.

If the Government does intend to act per the Crown Law 2006 opinion during this period, then we would also like you to remind your ministerial colleagues of its validity in a circular to them. You may also wish to copy Ms. Unkovich MP – whilst she is not a member of the executive we understand she is consulting widely with gender-critical groups on undoing existing human rights protections and she is internally arguing for the coalition to act in ways that would repudiate the Crown Law 2006 opinion. That, of course, is her right as a member outside the executive but it is deeply distressing to the groups whose rights she seeks to abrogate summarily and without consultation with said groups. We have direct knowledge that some brave members of the transgender community have sought to meet with Ms. Unkovich to discuss their concerns but no meetings have been forthcoming.

If you do not intend to act per the Crown Law 2006 opinion, then we will be extremely interested in understanding the Government’s reasoning. And various actors might seek to contest that legally in the appropriate forums. As we mentioned earlier, our position is that this would be a significant undoing of legal norms and respect for the opinions of the Solicitor-General and Crown Law. Furthermore, it would not be in line with the sociological data gathered during the period 2006-2024 which clearly shows that society functioned well during this period when transgender people, non-binary people and people with innate variations of sex characteristics had human rights implicitly and all the Governments during that time acted as if they did. We discuss this sociological data in our submission to Ia Tangata which is attached to this email.

In summary, CHSA has the very highest opinion of you and your office. We seek to engage with you meaningfully, constructively, positively, and in good faith on this topic. To our mind, the correct procedure is to wait for the Law Commission’s work to be presented back to Minister Goldsmith and we trust that this will be your recommendation as Attorney-General. We further trust that as Attorney-General, until that time, you will continue to uphold the 2006 opinion of Crown Law in this matter. This will ensure that Aotearoa New Zealand retains the legal customs and norms that make us a robust representative democracy by not revoking the human rights of groups of people without proper consultation.

We look forward to your timely reply.

Ngā mihi nui,

Paul Thistoll

Chief Executive Officer

Countering Hate Speech Aotearoa

[1] Lest you think CHSA is being hyperbolic - in their submission to the Law Commission SUFW argue for compulsory chromosomal testing of newborns (which is approximately 2000 dollars a test in New Zealand). They made their submission public.