Submission To The Social Services and Community Commity On The Legislation (Definitions Of Woman And Man) Amendment Bill

Submitted by Rights Aotearoa

1. Introduction and Standing

Rights Aotearoa is one of Aotearoa New Zealand's leading non-governmental organisations dedicated to promoting and defending universal human rights, with a particular focus on the rights of transgender, non-binary, and intersex people. We engage across legal advocacy, public education, policy development, and with Parliament on matters affecting rainbow communities across Aotearoa.

We submit in strong opposition to the Legislation (Definitions of Woman and Man) Amendment Bill (the Bill). This submission addresses the Bill's legal incoherence; its failure to meet basic standards of legislative process and impact assessment; its irreconcilable conflict with existing legislation; its risk of narrowing sex discrimination protections for all New Zealanders, including cisgender women; the profound practical unworkability of any enforcement regime it would engender; the serious threats it poses to privacy and bodily autonomy; the harm it would cause to transgender, non-binary, intersex, and takatāpui New Zealanders; its implications for te Tiriti o Waitangi; its incompatibility with the New Zealand Bill of Rights Act 1990; and its broader inconsistency with Aotearoa's human rights framework.

Rights Aotearoa urges the committee to recommend that the Bill not proceed.

Rights Aotearoa requests the privilege of making an oral submission to the committee.

2. Overview: An Unworkable Solution to a Non-Existent Problem

The Legislation (Definitions of Woman and Man) Amendment Bill is, in the assessment of Rights Aotearoa, an unworkable solution in search of a non-existent problem.

The Bill proposes to insert ostensibly biological definitions of "woman" and "man" into the Legislation Act 2019, with the stated aim of providing clarity and consistency across New Zealand's statute book. That aim is not achieved. The Bill introduces circular definitions that lack legal precision; conflicts irreconcilably with the self-identification paradigm established by the Births, Deaths, Marriages, and Relationships Registration Act 2021 (BDMRR); and would be wholly unworkable in practice without a national sex-identification infrastructure that would cost several billion dollars, does not exist, and has not been costed or proposed by its proponents.

The committee should note the acknowledgement made by the Minister for Women, the Hon Nicola Grigg, during the Bill's first reading debate: that it was not clear the Bill would deliver any additional rights or opportunities for women and girls. That concession, from a Minister supporting the Bill's referral to this committee, is highly significant. It strongly suggests that the Bill is not a targeted solution to a defined legal problem, but a symbolic and ideological intervention that risks destabilising existing legal coherence across New Zealand's entire statute book.

Far from providing clarity, this Bill introduces legal incoherence. Far from protecting anyone, it erases transgender, non-binary, intersex, and takatāpui people from legal recognition — and simultaneously creates serious risks for cisgender women's existing discrimination protections. Far from reflecting a genuine social need, it responds to harms that have not occurred and for which no credible evidence has been advanced.

3. The Bill is Lawfare

Rights Aotearoa submits that the Legislation (Definitions of Woman and Man) Amendment Bill is not a genuine attempt at legislative clarification. It is, properly understood, an act of legislative lawfare against transgender, non-binary, intersex, and takatāpui New Zealanders.

The Bill's proponents have been explicit about their broader objectives. The biological definitions proposed here are intended to serve as a legal foundation for a wider programme aimed at excluding transgender people — and in particular trans women — from public spaces and services that align with their gender identity. That objective is not achieved by the Bill as currently drafted; it is too poorly constructed to carry the weight placed on it. The select committee process nonetheless presents a serious risk that the Bill will be extended or amended to advance that programme further. The committee should be alert to submissions that seek to introduce specific definitions of biological sex — for example, chromosomal definitions — that would compound the Bill's harmful effects, particularly for intersex people.

The Bill is also, on its own terms, extremely poorly drafted. It proposes to define "woman" as "an adult human biological female" and "man" as "an adult human biological male." These definitions are circular: they tell us nothing about what "biological female" or "biological male" means. The Bill does not define biological sex. It does not specify which criteria — chromosomal, gonadal, hormonal, anatomical — are to govern the determination of biological sex in any given legal context. This is not a technical oversight resolvable at the select committee stage. It reflects the inherent instability of the concept that the Bill seeks to enshrine. There is no single, universal biological criterion by which all human beings can be unambiguously classified as male or female, and the scientific and medical literature is clear on this point.

The committee should also note that "biological sex" is not synonymous with "sex assigned at birth" or "sex recorded at birth." Those are administrative classifications made at a particular point in time, on the basis of external observation, for legal and evidentiary purposes. They are not determinations of fixed biological reality. Moreover, biological characteristics are not static across all individuals' lifetimes — including for those who access gender-affirming healthcare. The Bill's foundational concept is neither legally precise nor scientifically coherent.

4. A Flawed Legislative Process

Before turning to the Bill's substantive deficiencies, Rights Aotearoa submits that this is legislation that should not have reached this committee in its current form. A sweeping definitional change of this kind — one that would alter the meaning of key terms across every statute in which they appear — would ordinarily require, as a minimum standard of responsible legislative practice:

a detailed audit of all affected legislation and the consequences of displacing existing interpretations in each context;
a comprehensive regulatory impact assessment addressing potential unintended consequences across administrative, health, anti-discrimination, criminal, and family law settings;
genuine consultation with all affected communities, including transgender, non-binary, and intersex people, and Māori communities whose cultural frameworks are directly engaged; and
transitional provisions to manage the legal uncertainty created during any implementation period.

None of these safeguards are present. The Bill arrives before this committee without a credible regulatory impact statement (a worrying trend recently has been the deterioration in the quality of Section 7 assessments also which is present), without an audit of affected legislation, and without any account of how its definitional changes are to interact with the existing wider statutory landscape.

It should not fall to civil society organisations — including those representing communities who would be most harmed by the Bill's enactment — to identify these problems and educate the committee about the risks. That is the careful, foundational work of responsible government. The absence of that work is itself a reason for the committee to decline to recommend the Bill's passage.

5. Conflict with the BDMRR and the Legislation Act 2019

New Zealand law has already settled on a clear and workable paradigm for the legal recognition of sex and gender: self-identification, as established by the Births, Deaths, Marriages, and Relationships Registration Act 2021. Under the BDMRR regime, individuals may elect the sex or gender marker recorded on their birth certificate and identity documents through a statutory declaration process, without requiring medical intervention or judicial oversight. This represents a deliberate, considered, and democratically enacted legislative choice.

The Legislation (Definitions of Woman and Man) Amendment Bill would introduce a directly contradictory legal paradigm. A transgender woman who has changed her birth certificate under the BDMRR to record her sex as female would, under this Bill, be legally categorised as a man across all legislation to which the Bill's definitions applied. This is not a tension resolvable by statutory interpretation: it is an irreconcilable conflict at the heart of the statute book — the precise opposite of the clarity the Bill claims to deliver.

The committee should also note the internal contradiction within the Legislation Act 2019 itself. Section 16 of that Act establishes a gender-neutral interpretation framework for New Zealand legislation. The Bill proposes to amend the very same Act to insert gendered biological definitions — without any account of how those provisions are to be read together, and without any attempt by the Bill's proponents to address this congruence problem.

Critically, the BDMRR paradigm has been proven to work. Even before that legislation came into force, transgender New Zealanders had been using spaces and services that align with their gender identity without any recorded adverse incidents attributable to the self-identification regime. There are no verified instances of trans women behaving improperly in women's spaces. There are no verified instances of cisgender men posing as transgender women to gain access to women's spaces. The predicted harms have not materialised. The committee should weigh this evidence carefully when considering whether any legislative intervention is warranted.

6. The Bill Would Narrow Sex Discrimination Protections for All New Zealanders

Rights Aotearoa submits that one of the most serious and underappreciated consequences of the Bill is its potential to narrow sex discrimination protections not only for transgender people, but for all New Zealanders — including cisgender women.

The Human Rights Act 1993 does not generally rely on the terms "woman," "man," "female," or "male." Instead, it prohibits discrimination on the basis of "sex." The Bill therefore creates a directly relevant and troubling interpretive risk: if Parliament enacts legislation requiring that "woman," "man," "female," and "male" be understood solely by reference to biological characteristics, courts may be expected to interpret "sex" in the Human Rights Act through the same biological lens.

If that interpretive shift occurs, the consequences would extend well beyond transgender communities. Sex discrimination does not operate primarily through biology. It operates through stereotypes, assumptions, and social expectations about how women and men should look, behave, dress, work, and participate in society. Courts in New Zealand and comparable jurisdictions have long recognised this reality.

To make this concrete: a school requiring girls to study home economics while boys study industrial arts is engaging in sex discrimination. A law firm requiring all partners to work full-time — knowing women disproportionately carry caregiving responsibilities — engages in sex discrimination. A workplace that exposes female staff to misogynistic commentary and sexist conduct engages in sex discrimination. None of these forms of discrimination arise from a person's chromosomal profile or reproductive anatomy. They arise from social assumptions about gender roles. If sex means only biology in law, discrimination that operates through gendered stereotypes — the most common form of sexism that women actually encounter — may fall outside the reach of the Human Rights Act entirely.

For transgender people, the consequences are even more direct. Because the Human Rights Act does not contain a separate ground of gender identity, transgender New Zealanders have relied on the Crown Law Office's settled 2006 interpretation that "sex" in section 21(1)(a) encompasses gender identity. This Bill directly undermines that interpretation and may remove discrimination protections for transgender people entirely.

The committee should be unambiguous in its report: legislation that simultaneously narrows discrimination protections for women and removes them for transgender people is not a human rights advance. It is a human rights regression, affecting far more New Zealanders than its proponents have acknowledged.

7. Erasure of Non-Binary, Intersex, and Takatāpui People — and Te Tiriti

The Bill's binary framework — defining only "woman" and "man" — cannot accommodate the full reality of human sex and gender diversity. Rights Aotearoa submits that the Bill would, if enacted, effectively erase three distinct communities (as distinct from transgender people) from legal recognition, with serious and foreseeable consequences for each.

Non-binary people

Non-binary people — those who do not identify exclusively as a man or a woman — have no place within the Bill's definitional framework. Since the BDMRR came into force, New Zealanders have been able to register as neither male nor female. The Bill would create a fundamental and irreconcilable inconsistency: non-binary people who are legally recognised as such under the BDMRR regime would nonetheless be classified as either a man or a woman under all other legislation to which the Bill's definitions applied. They would be required, repeatedly and across many domains of public life, to justify and explain a genuine, deeply-held identity that Parliament has already recognised. This ongoing administrative burden serves no legitimate purpose and causes real harm to real people.

Intersex people

Intersex people — those born with innate variations of sex characteristics, encompassing chromosomal, hormonal, gonadal, or anatomical variations from typical binary definitions — are similarly erased. The Bill rests on an implicit assumption that biological sex is universally binary and unambiguous. This is factually incorrect. Intersex conditions are estimated to affect between 1.7% and 4% of the population, depending on the diagnostic criteria applied.

The Bill provides no guidance on how intersex people are to be categorised. Consider a concrete illustration: a person observed and recorded as female at birth, who lives throughout their life as a woman, and who later discovers through medical testing that they have a Y chromosome. The Bill does not explain how such a person is to be classified. Is "biological woman" determined by chromosomes? By anatomy? By hormonal profile? By a combination of these? The Bill is entirely silent — leaving intersex people exposed to arbitrary, reductive, and potentially harmful administrative determinations made by institutions with no expertise in the complexity of sex variation, and with no right of appeal or recourse that the Bill establishes.

Takatāpui and te Tiriti o Waitangi

Takatāpui is a te reo Māori term encompassing Māori people who are transgender, non-binary, intersex, or who otherwise hold identities outside a European binary gender framework. Takatāpui identities are embedded in tikanga Māori and te ao Māori, and carry cultural significance that predates European settlement by centuries. The Bill, in imposing a binary biological classification across all New Zealand legislation, would override and erase these identities in law — substituting a Eurocentric binary for an indigenous cultural framework that has always recognised a broader range of human experience.

Rights Aotearoa submits that this constitutes a likely breach of the Crown's obligations under te Tiriti o Waitangi. The Treaty guarantee of tino rangatiratanga — the right of Māori to exercise authority over their own affairs, including the maintenance of their own cultural frameworks and identities — is directly engaged when the Crown legislates in ways that erase Māori cultural concepts and replace them with an imported paradigm. The committee should seek advice from the Waitangi Tribunal or appropriate Treaty advisors on the Bill's consistency with the Crown's Treaty obligations before the Bill proceeds further.

8. The Sex-ID Infrastructure Problem and the Right to Privacy

The infrastructure argument

One of the most fundamental and disqualifying flaws in the Bill is that it cannot be made practically workable across New Zealand's statute book without a national sex-identification infrastructure that is enormous, invasive, constitutionally problematic, and extraordinarily expensive.

A person's sex assigned at birth is private medical information. It is not recorded on any publicly accessible document. A New Zealander's driver's licence, passport, and other identity documents record gender markers which, under the BDMRR, may reflect self-identification rather than sex assigned at birth. There is currently no mechanism by which an employer, service provider, government agency, or operator of a single-sex space can verify a person's biological sex as the Bill would define it.

For the Bill's definitions to have any practical legal effect, the Crown would need to establish a mechanism by which biological sex can be verified, recorded, and made available in relevant legal contexts. The only feasible mechanism is a national sex-identification register: effectively, a biological sex identity document that individuals could be required to produce and that institutions could check. Such a system would represent a wholly unprecedented intrusion into the medical privacy of every New Zealander and a direct violation of the Privacy Act 2020. A multi-billion-dollar public investment would be required, for which there is no appropriation, no budget line, no policy proposal, and no costing from the Bill's proponents. Without such a system, the Bill is substantively unenforceable.

And as previously stated, there is no biologically suitable definition that such a sex-ID infrastructure could rely on.

Privacy as an individual right — the ICCPR dimension

Beyond the structural privacy concerns raised by any enforcement infrastructure, the Bill also creates a distinct and immediate threat to the privacy rights of transgender, non-binary, intersex and takatāpui people at the level of individual legal jeopardy — without any new system needing to be established.

The Bill makes legal status contingent upon "biological sex" without specifying how that status is to be determined in any given context. For any transgender or intersex person whose documented identity is challenged, establishing their legal status under the Bill may require the disclosure of profoundly intimate medical information: anatomy, chromosomal profile, hormonal history, surgical records. This is not a speculative risk. It is the foreseeable and inevitable consequence of the Bill's architecture in operation.

While the New Zealand Bill of Rights Act 1990 does not contain an explicit right to privacy, that right is clearly established under Article 17 of the International Covenant on Civil and Political Rights (ICCPR), to which New Zealand is a party. Article 17 protects individuals against arbitrary or unlawful interference with their privacy. Requiring a person to disclose their chromosomal profile, anatomy, or intimate medical history as a condition of accessing public life engages Article 17 directly.

Bodily autonomy

The bodily autonomy dimension is equally serious. The two mechanisms most commonly advanced for biological sex verification — chromosomal testing and physical examination — both constitute serious violations of bodily integrity if applied as general administrative measures. Chromosomal testing cannot be performed without medical intervention; produces ambiguous or unexpected results for a significant proportion of intersex people; and does not reflect the documented sex characteristics of individuals who have undergone gender-affirming medical treatment. Physical examination is constitutionally impermissible as a routine condition of access to public life. Article 7 of the ICCPR, which prohibits cruel, inhuman, or degrading treatment, is engaged by any verification regime that requires intrusive examination of a person's physical characteristics as a condition of legal recognition.

The committee should require the Bill's proponents to explain, with specificity, how the Bill is to be enforced without an identification regime of this kind. If no credible answer is forthcoming — and Rights Aotearoa submits that none can be — that is itself a sufficient basis for the Bill's rejection.

9. New Zealand Bill of Rights Act 1990

The Bill engages multiple rights protected under the New Zealand Bill of Rights Act 1990 (NZBORA). Rights Aotearoa submits that the Bill is inconsistent with NZBORA and that no justification under section 5 is available.

Section 19 — Freedom from discrimination

Section 19 of NZBORA affirms the right to freedom from discrimination on the grounds set out in the Human Rights Act 1993, which includes sex and, in established administrative practice, gender identity. A statutory framework that systemically misclassifies transgender, non-binary, intersex and takatātui people into a legal sex category contrary to their documented identity will produce discriminatory outcomes across every domain of public life to which the Bill's definitions apply — employment, housing, health, education, and access to services. The section 19(2) exception for measures designed to advance equality of opportunity is not engaged, because the Bill does not take a proportionate approach rationally connected to the advancement of any disadvantaged group. It creates new disadvantages rather than remedying existing disadvantages. The Section 7 report also highlighted that the bill engages this section under age discrimination.

Section 14 — Freedom of expression

Section 14 of NZBORA affirms the right to freedom of expression. Rights Aotearoa submits that gender expression — including a person's name, appearance, presentation, and public identity — is a form of expression protected under section 14. By requiring that self-identification of gender must yield to a rigid biological classification in all legal contexts, the Bill discourages transgender people from openly and safely expressing their identity in public life. The chilling effect on gender expression is a foreseeable and direct consequence of the Bill, and constitutes a limitation of section 14 rights that cannot be justified under section 5.

Section 9 — Freedom from inhuman or degrading treatment

Section 9 of NZBORA affirms the right to be free from cruel, degrading, or disproportionately severe treatment. Rights Aotearoa submits that the systematic forced misclassification of transgender people in law — compelling them to be legally identified by a sex category inconsistent with their identity, their lived experience, and their documentation — is capable of constituting degrading treatment within the meaning of section 9. The Human Rights Committee, in its jurisprudence under the ICCPR, has recognised that denial of legal recognition of gender identity can rise to the level of inhuman or degrading treatment, particularly where it causes serious humiliation, loss of dignity, or significant psychological harm. The Counting Ourselves survey (2025) documents elevated rates of psychological distress and suicidality among transgender New Zealanders. Legislation that compounds that harm through state-sanctioned misclassification engages section 9 directly.

Section 5 — Justified and Minimal limitations

For any limitation on these rights to be justified under section 5, the limitation must be demonstrably justified in a free and democratic society and infringe on those rights as minimally as possible. That requires a genuine and pressing social objective, a rational connection between the limitation and that objective, and proportionality. The Bill fails each of these tests. There is no demonstrated harm requiring remedy. There is no rational connection between biological definitions inserted across the statute book and any improvement in women's safety or rights. The Bill's sweeping reach is entirely disproportionate to any objective its proponents have articulated. The Minister for Women's own acknowledgement that it is unclear whether the Bill would deliver additional rights or opportunities for women confirms that no pressing objective has been identified.

10. Human Rights Act Analysis

The Crown Law 2006 opinion

Since 2006, the Crown Law Office has maintained the position that "sex" in section 21(1)(a) of the Human Rights Act 1993 should be interpreted to include gender identity, on the basis of international jurisprudence. This interpretation has been accepted by Te Kāhui Tika Tangata and has provided the legal foundation for anti-discrimination protections for transgender New Zealanders for two decades. It represents settled administrative law, consistently applied.

The Legislation (Definitions of Woman and Man) Amendment Bill would directly undercut this interpretation. By enshrining biological definitions of "woman" and "man" across all legislation, the Bill creates a statutory basis for arguing that gender identity falls outside the existing protections of the Human Rights Act — exposing transgender New Zealanders to discrimination across employment, housing, education, and access to services that has been unlawful for twenty years.

The Ia Tangata recommendations

In 2025, the Law Commission published Ia Tangata — a comprehensive, extensively researched report recommending that the Human Rights Act be amended to explicitly include "gender identity" and "innate variations of sex characteristics" as named prohibited grounds of discrimination. The Government shelved those recommendations in February 2026 citing insufficient time in the legislative agenda to progress them. Despite that, this Bill travels in precisely the opposite direction. The committee should recommend that the Government urgently revisit those recommendations and implement them.

Single-sex spaces

The Human Rights Act already provides a workable framework within which single-sex spaces and services can lawfully be operated. Section 43 permits differential treatment on the basis of sex where it is justified by the circumstances. This framework has coexisted with the BDMRR self-identification paradigm without difficulty. There is no gap in the law that this Bill fills. The existing framework is legally sufficient, practically workable, and consistent with New Zealand's international human rights obligations.

Most New Zealand laws are already gender-neutral

The committee should note the observation made by the Minister for Women during the second reading debate: that the overwhelming majority of New Zealand laws are drafted in gender-neutral terms, and that where sex-specific language does appear, it is typically confined to narrow contexts — pregnancy, reproduction, and sex-specific health considerations. Courts and decision-makers already interpret those terms contextually, consistently with legislative purpose and established principles of statutory interpretation. The Bill's proponents have not identified a specific, credible legislative gap that requires the remedy they propose. Rights Aotearoa submits that no such gap exists.

Beyond its legal and constitutional deficiencies, the Bill would cause real and documented harm to real tāngata.

The Counting Ourselves survey (2025) — the most comprehensive study of transgender community wellbeing in Aotearoa — documented significantly elevated rates of psychological distress, suicidal ideation, and self-harm among transgender New Zealanders compared with the general population. Legislation that misgenders transgender people in law, strips away their legal recognition, and exposes them to challenge and exclusion from public life will compound that harm materially. When the state misgenders transgender people, every institution downstream follows: government forms, employment records, healthcare settings, schools, and aged care facilities. The mental health consequences are not speculative. They are documented and foreseeable.

The ongoing public debate surrounding this Bill has already contributed to a climate of dehumanisation, in which transgender identities are treated as something to be denied, legislated against, or erased from recognition — rather than as part of the rich and longstanding diversity of our communities. Enacting the Bill would give legislative imprimatur to that dehumanisation.

The Bill would also harm gender non-conforming cisgender New Zealanders. On any enforcement regime that flows from this legislation — whether administered formally by institutions or informally by the operators of spaces and services — individuals whose appearance does not conform to stereotypical expectations of their biological sex will face challenge and scrutiny. Masculine-presenting women and feminine-presenting men, who pose no risk to anyone and who have an absolute entitlement to access public life, would find themselves subject to intrusive and humiliating interrogation. The Bill creates a framework for the policing of gender conformity that extends well beyond transgender communities.

Society gains nothing from this legislation. The harms it purports to address are not documented. The harms it would create are foreseeable, severe, and borne disproportionately by some of the most vulnerable members of our communities.

12. Conclusion and Recommendations

Rights Aotearoa urges the Social Services and Community Committee to recommend that the Legislation (Definitions of Woman and Man) Amendment Bill not proceed in any form.

This Bill is legally incoherent, practically unworkable, and constitutionally deficient. It arrived before this committee without a credible regulatory impact statement, without an audit of affected legislation, and without any credible account of how it would interact with the existing statutory landscape. It conflicts irreconcilably with the BDMRR self-identification paradigm and with section 16 of the Legislation Act 2019. It risks narrowing sex discrimination protections for all New Zealanders, including cisgender women. It erases transgender, non-binary, intersex, and takatāpui people from legal recognition. It is inconsistent with sections 9, 14, and 19 of the New Zealand Bill of Rights Act 1990. It violates rights to privacy and bodily autonomy recognised under Articles 7 and 17 of the ICCPR. It directly undermines two decades of settled human rights protection grounded in the Crown Law 2006 opinion. And it would cause documented, foreseeable harm to transgender, non-binary, intersex, and takatapui New Zealanders and others across every domain of public life.

Even the Minister for Women has been unable to articulate what additional rights or opportunities this Bill would actually deliver. The committee should take that concession seriously.

Rights Aotearoa specifically recommends:

That the Bill be rejected by the committee in its entirety.
That the committee recommend that the Government urgently revisit and implement the Law Commission's Ia Tangata recommendations, including the explicit inclusion of gender identity and innate variations of sex characteristics as named grounds of protection under the Human Rights Act 1993.
That the committee seek independent advice on the Bill's consistency with the Crown's obligations under te Tiriti o Waitangi, including from the Waitangi Tribunal where appropriate.
That the committee record in its report that the current legislative framework — including the BDMRR self-identification paradigm and the Crown Law 2006 interpretation of the Human Rights Act — is functioning as intended, and that no legislative intervention of the kind proposed by this Bill is warranted.
That the committee recommend the Government commission a comprehensive review of the interaction between sex-specific terminology across the statute book, conducted in proper consultation with all affected communities, before any further legislative action is contemplated in this area.