Georgina Beyer, the first New Zealand transgender member of parliament, pictured addressing the Asia/Pacific plenary session of the International Conference on LGBT Human Rights in Montreal in 2006
Georgina Beyer, the first New Zealand transgender member of parliament, pictured addressing the Asia/Pacific plenary session of the International Conference on LGBT Human Rights in Montreal in 2006

Transgender and non-binary people in New Zealand face discrimination in several aspects of their lives. The law is unclear on the legal status of discrimination based on gender identity, and also for intersex people.[1]

The International Commission of Jurists and the International Service for Human Rights in 2007 created the Yogyakarta Principles to apply international human rights law to gender identity and sexual orientation. The first and arguably most important is that human rights are available to all humans, regardless of gender identity, and that states should amend legislation "to ensure its consistency with the universal enjoyment of all human rights."[2] This report suggested that transgender people were "one of the most marginalised groups" in New Zealand, leading the Human Rights Commission to publish a comprehensive inquiry entitled To Be Who I Am in 2008, which outlined some of the concerns listed below.[3] Transgender rights organisations carry out over 1,300 individual peer supports each year, with many of these addressing breaches of universal human rights.[4] These concerns are particularly important considering that the discrimination and exclusion has been shown to increase the risk of mental health issues and suicide.[5]

Currently, the Human Rights Act 1993 does not explicitly prohibit discrimination on the basis of gender. Whilst it is believed that gender identity is protected under the laws preventing discrimination on the basis of either sex or sexual orientation,[6] it is not known how this applies to those who have not had, or will not have, gender reassignment surgery.[1] Some overseas courts have determined that transgender people are covered by prohibitions on discrimination based on sex, but there is also international case law suggesting it is not.[7] Even if it is, it is unlikely to apply to transgender people who have not or will not have gender reassignment surgery.[8] Likewise, placing gender identity under the prohibitions on the grounds of sexual orientation is problematic. While there is some inconsistent international case law, it has been noted that gender identification and sexual orientation are too unrelated for this to be suitable.[9]

Gender reassignment surgery is available in New Zealand, though there are cost barriers to accessing such surgery. New Zealanders are legally permitted to change the designation of their gender on government documents through self-determination. The legalisation of same-sex marriage in 2013 had the effect of removing the requirement to divorce if one was already married.

Demographics

According to Statistics New Zealand using data from the 2020 Household Economic Survey data, there are approximately 31,800 transgender and non-binary adults (18 and over) in New Zealand. Approximately 9,000 of these identify as male, 10,600 as female, and 12,200 as another gender. The Auckland region had the largest transgender and non-binary population at 9,300, followed by the Wellington region (6,300), Canterbury (3,800), and Waikato (3,300).[10]

New Zealand's transgender and non-binary population is younger and more ethnically diverse compared to the cisgender population. Just over half (52.2%) of the transgender and non-binary population is aged under 35, compared to 30.9% of the cisgender population. In terms of ethnicity, 56.2% of the transgender and non-binary population are European (compared to 70.4%), 18.5% are Māori (13.7%), 10.5% are Pacific peoples (5.9%) and 22.5% are Asian (16.9%) (totals add to more than 100% since people may identify with multiple ethnicities).[10]

Around 4.4% of transgender and non-binary population are unemployed, 66.6% are employed, and 24.6% are not in the labour force (compared to 2.6%, 66.0% and 27.9% respectively for the cisgender population). The transgender and non-binary population had an average annual disposable income of NZ$35,645, compared to $40,103 for the cisgender population. However, some or all of the difference in employment and income may be explained by the transgender and non-binary population being younger than the cisgender population.[10]

Cultural discrimination

Discrimination on the basis of gender identity can also be cultural discrimination, as in New Zealand, several cultures have a history of differences in gender identity. Transgender Māori people — tangata ira tane (male who was born female), and whakawahine, hinehi, and hinehua (female who was born male) – were observed by the first European explorers to New Zealand.[11] Cultures which accept transgender people can create positive environments for its members to determine their own gender identity.[12] Transgender people from these communities may be aware of the potential to transition earlier, and may be less likely to require or desire genital surgery.[13] However, there are also general concerns that Māori patients have reduced health access and receive fewer referrals and medical tests.[14]

Discrimination in the workplace

Discrimination in the workplace particularly relates to access to employment, job retention and safety in the workplace.[15] An inability to find a job can cause difficulties with having enough money, but also can cause a person to feel disconnected from the world.[16] Transgender people have reported harassment, violations of privacy, and unfair dismissals at the workplace.[17]

In light of the findings of the Human Rights Commission, the Department of Labour has issued a guide to transgender people in the workplace. It specifies that unless gender identity affects the ability to perform a job, employers or prospective employers are not permitted to ask if a person is transgender. Discrimination in the workplace on the basis of gender identity can be referred to the Human Rights Commission.[18]

The right to healthcare, and protection from discrimination on basis of health

The health issues faced by transgender and non-binary people are particularly complex. Many general practitioners in New Zealand are unaware of medical issues and practices for transgender people, which is problematic when GPs are required to refer their patient on to specialist services.[19] Indeed, it is difficult to have a set practice for transgender and non-binary people because their needs and wants can be highly individualised, particularly in relation to cultural considerations and as gender identities can vary greatly from simply "male" or "female".[20]

Currently, the Human Rights Act 1993 prohibits discrimination on the basis of disability, including psychological abnormality.[21] However, the Human Rights Commission Action Plan of 2004 noted that associating gender identity with "abnormality" can have a negative impact on the lives of those affected.[22] Whilst the medical community accepts transgender identification as a medical issue, there is concern with it being depicted as an illness.[23] Currently a diagnosis of Gender Identity Disorder is often required before further treatment or referrals can be given.[24] The World Professional Association for Transgender Health have stated that gender identification is very broad and crosses cultures and should not be considered as an illness, particularly as this can lead to stigma which can lead to mental health issues in those with different gender identities.[25] Whilst gender dysphoria may be severe enough in some cases to justify a mental health diagnosis, there is concern that this diagnosis is used as "a license for the stigmatization or for the deprivation of civil and human rights."[20]

The cost of healthcare can be a significant barrier. Input from a mental health professional may be required for further treatment but not funded, limiting the service to those who can afford it.[26] Four types of hormone treatments are subsidised through Pharmac, including puberty blockers, oestrogen, androgen blockers and testosterone.[27] Currently, psychological input or counselling may be required to ensure fully informed consent, as some treatments are not fully reversible.[27]

The average cost of genital reconstruction surgery in New Zealand is $53,400 for male-to-female surgeries and $218,900 for female-to-male surgeries.[28] Furthermore, there is only one genital reconstruction surgeon in New Zealand.[29] The Ministry of Health provides for around 14 publicly-funded genital reconstruction surgeries every year. Only five surgeries were performed in 2020, primarily due to the COVID-19 pandemic cancelling elective surgeries; nine surgeries were performed in the first ten months of 2021. As of October 2021, there is a waiting list of 308 people for publicly-funded surgery, meaning the wait could be substantial.[30] Transgender people are forced to wait or pay for private surgery.[31]

The barriers to health access which affect transgender people have been shown to be higher for children and teenagers, because many of the specialists cater only to adults.[32]

Gender identity and youth

Many of the transgender people who assisted with the To Be Who I Am inquiry reported that they knew from a young age that they had a different gender identity.[33] A culture of stereotypes and negative beliefs about transgender people can lead to severe social difficulties for children exploring their gender.[34] Some trans people in New Zealand have reported both physical and sexual abuse from their parents.[35]

Transgender status in New Zealand can currently impact on a child’s right to an education. Failure to recognise when a child legally changes gender, being forced to use the wrong toilets, and bullying are problems. Youth 19 research report showed transgender students were five times as likely to be bullied on a weekly basis than their cisgender counterparts. Some transgender children have been forced to leave schools, or find there is no school that will accept them.[36] Bullying is a significant problem for transgender students, reported as being almost 5 times higher than that experienced by non-transgender students.[37] Problems like being assigned a uniform for a gender a child doesn't identify with, pressure from the school to wear it, and being forced to wear that uniform as a punishment have been reported to the Human Rights Commission.[38]

In 2012 a health survey was undertaken of 8,500 New Zealand secondary school students, and discovered that approximately 4% were either transgender or unsure about their gender. 40% of those students who identified as transgender indicated significant depressive symptoms and one in five had attempted suicide in the last year.[37]

Civil and political rights

Laws concerning gender identity-expression by country or territory .mw-parser-output .legend{page-break-inside:avoid;break-inside:avoid-column}.mw-parser-output .legend-color{display:inline-block;min-width:1.25em;height:1.25em;line-height:1.25;margin:1px 0;text-align:center;border:1px solid black;background-color:transparent;color:black}.mw-parser-output .legend-text{}  Legal identity change, surgery not required   Legal identity change, surgery required   No legal identity change   Unknown/Ambiguous  New Zealand allows legal identity change without the requirement of sex-reassignment surgery.
Laws concerning gender identity-expression by country or territory
  Legal identity change, surgery not required
  Legal identity change, surgery required
  No legal identity change
  Unknown/Ambiguous

New Zealand allows legal identity change without the requirement of sex-reassignment surgery.

Legally changing names and sex / gender identity on official documentation can be a large barrier to transgender people in New Zealand depending on the type of document. Documents such as passports and birth certificates, changing names at schools and universities has often been difficult in the past, and could cause problems for transgender people in the future when their academic record and degree is issued in another name,[39] but changes have been made in the recent years to ease such barriers. Counting Ourselves (2019)[40] report showed over 80% of transgender people in New Zealand had an incorrect gender marker on their birth certificate.

The process for legally changing ones sex on legal documents differ depending on the type of document. To change sex marker on a birth certificate, the applicant must show that they have undergone "permanent medical changes".[41][42] In the past this has been interpreted as meaning that a transgender person who has not had genital reconstruction surgery cannot change their sex on their birth certificate, but this has since been updated to be a case-by-case assessment, therefore full genital reconstruction surgery may not always be necessary.[43] When the Births, Deaths, Marriages, and Relationships Registration Act 2021 comes into force in 2023, applicants who were born in New Zealand will be able to change the sex marker on their birth certificate by applying to the Registrar of Births, Deaths and Marriages, along with a statutory declaration of their gender identity and paying the prescribed fee. Minors under 18 will also need consent of their legal guardian and a letter of recommendation from a suitable third party (such as, but not limited to, a health professional) that the minor gives informed consent to changing their sex marker.[44]

As of 2013, the process of changing sex on a New Zealand passport has been simplified to lessen the legal barrier faced by transgender passport holders. Applicants need to apply for a new or replacement passport, along with a statutory declaration of their gender identity for the change to occur. If the applicant is under 16, the application also must include a letter of support from a registered counsellor or medical professional.[45] The process is similar in the case of changing sex on a citizenship certificate.[43]

New Zealand driver licences do not have a gender marker printed on them, although the licence holder's gender is recorded on the driver licence register. The gender on the register can be changed when applying for or renewing a driver licence, or by contacting Waka Kotahi NZ Transport Agency.[46]

As of 2016, Statistics New Zealand has the globally first official statistical standard for gender identity, which provides guidance for the collection, analysis and reporting of official statistics on gender identity.[47] The current version of the standard was released in April 2021.[48]

During the 2020 New Zealand general election, Newshub and Stuff reported that documents for individuals who want to register to vote (for the New Zealand 2020 elections) include a checkbox for the gender-neutral title Mx.[49][50]

Legislation

During the first reading for the Statutes Amendment Bill (No 4) in April 2014, Louisa Wall submitted a Supplementary Order Paper requesting an amendment of s21(1)(a) of the Human Rights Act 1993 to include gender identity as a prohibited grounds of discrimination. Whilst it has been accepted by the government for several years that transgender people are already protected under the prohibition on sexual discrimination, Louisa Wall argued that the minor change would be a technical one to confirm and clarify this. This move was supported by Jan Logie.[51]

In August 2021, Minister of Justice Kris Faafoi introduced the Conversion Practices Prohibition Legislation Bill to outlaw conversion therapy practices.[52][53] The Bill passed its first reading and entered into the select committee stage on 5 August.[54][55] The Bill subsequently passed its third and final reading on 15 February 2022, becoming law.[56]

In November 2017, the New Zealand Parliament introduced the Births, Deaths, Marriages, and Relationships Registration Bill to allow people to change the sex on their birth certificates by statutory declaration, avoiding having to go through the Family Court or show evidence of medical treatment to change their sex.[57] The Human Rights Commission has supported the bill on the grounds that it makes it easier for transgender and non-binary individuals to update sex details on birth certificates.[58] The Bill passed its third reading on 9 December 2021 and received the Royal Assent on 15 December 2021. This law comes into effect in 2023.[59]

Summary table

Anti-discrimination laws in employment
Yes
Human Rights Act 1993 does prohibit discrimination on the basis of gender [60]
Hate crimes laws covering gender identity
Yes
/
No
Legislation remains unclear, though transgender individuals are purportedly protected.

Hostility towards a victim based on their gender identity is a statutory aggravating factor in sentencing.[61]

Protection from discrimination on basis of health
Yes
/
No
Prohibitive costs and availability of surgery domestically
Right to change legal gender
Yes
Available for adults who have undergone "permanent medical changes", and youth who intend to do this, since 1993

Available for New Zealand-born people by statutory declaration from 2023.

Right to change legal gender without having to end marriage
Yes
Since 2013

See also

References

  1. ^ a b Human Rights Commission: “Human Rights in New Zealand Today – New Zealand Action Plan for Human Rights. August 2004. P.92
  2. ^ The Yogyakarta Principles: Principles on the Application of International Human Rights Law in Relation to Sexual Orientation and Gender Identity. 2007 p.10
  3. ^ Human Rights Commission: To Be Who I Am: Report of The Inquiry into Discrimination Experienced by Transgender People. January 2008 at 1.1.
  4. ^ "2020 Annual Report". Gender Minorities Aotearoa. 3 August 2021. Retrieved 5 September 2021.
  5. ^ Rainbow Youth, Rainbow Communities and the New Zealand Suicide Prevention Action Plan: Briefing Paper for Associate Minister of Health Todd McClay August 2013 p. 3
  6. ^ Human Rights Act 1993 s21(1)(m)
  7. ^ Heike Polster, “Gender Identity as a New Prohibited Ground of Discrimination” New Zealand Journal of Public and International Law. Vol 1 No 1 November 2003 at p180-181
  8. ^ Heike Polster, “Gender Identity as a New Prohibited Ground of Discrimination” New Zealand Journal of Public and International Law. Vol 1 No 1 November 2003 at p182.
  9. ^ Heike Polster, “Gender Identity as a New Prohibited Ground of Discrimination” New Zealand Journal of Public and International Law. Vol 1 No 1 November 2003 at p183.
  10. ^ a b c "LGBT+ population of Aotearoa: Year ended June 2020 | Stats NZ". www.stats.govt.nz. Retrieved 16 December 2021.
  11. ^ Human Rights Commission: To Be Who I Am: Report of the Inquiry into Discrimination Experienced by Transgender People. January 2008 at 2.1
  12. ^ Human Rights Commission: To Be Who I Am: Report of the Inquiry into Discrimination Experienced by Transgender People. January 2008 at 3.3
  13. ^ Gender Reassignment Health Services for Trans People Within New Zealand: Good Practice Guide for Health Professionals. Counties Manukau District Health Board, 2012. .12
  14. ^ Gender Reassignment Health Services for Trans People Within New Zealand: Good Practice Guide for Health Professionals. Counties Manukau District Health Board, 2012. P.16
  15. ^ Human Rights Commission: To Be Who I Am: Report of the Inquiry into Discrimination Experienced by Transgender People. January 2008 at 4.27
  16. ^ Human Rights Commission: To Be Who I Am: Report of the Inquiry into Discrimination Experienced by Transgender People. January 2008 at 4.29
  17. ^ Human Rights Commission: To Be Who I Am: Report of the Inquiry into Discrimination Experienced by Transgender People. January 2008 at 4.42
  18. ^ Department of Labour: Transgender People at Work. June 2011
  19. ^ Human Rights Commission: To Be Who I Am: Report of the Inquiry into Discrimination Experienced by Transgender People. January 2008 at 5.16, 5.17
  20. ^ a b World Professional Association for Transgender Health, Standards of Care for the Health of Transgender, and Gender-Nonconforming People. 7th Version, 2012. P.5
  21. ^ Human Rights Act 1993 s21(1)(h)(v)
  22. ^ Human Rights Commission: “Human Rights in New Zealand Today – New Zealand Action Plan for Human Rights. August 2004. P.91
  23. ^ Human Rights Commission: To Be Who I Am: Report of the Inquiry into Discrimination Experienced by Transgender People. January 2008 at 2.5
  24. ^ Human Rights Commission: To Be Who I Am: Report of the Inquiry into Discrimination Experienced by Transgender People. January 2008 at 5.21
  25. ^ World Professional Association for Transgender Health, Standards of Care for the Health of Transgender, and Gender-Nonconforming People. 7th Version, 2012. P.4
  26. ^ Human Rights Commission: To Be Who I Am: Report of the Inquiry into Discrimination Experienced by Transgender People. January 2008 at 5.32
  27. ^ a b Gender Reassignment Health Services for Trans People Within New Zealand: Good Practice Guide for Health Professionals. Counties Manukau District Health Board, 2012. P.7
  28. ^ "Gender affirmation surgery cap lifted". Newsroom. 16 October 2018. Retrieved 16 December 2021.
  29. ^ "Dr Rita Yang • Healthpoint". www.healthpoint.co.nz. Retrieved 6 August 2021.
  30. ^ "Updates from the Gender affirming (genital) surgery service". Ministry of Health NZ. Retrieved 16 December 2021.
  31. ^ "Sex-change surgery delay hits youth". Stuff. Retrieved 30 July 2019.
  32. ^ Human Rights Commission: To Be Who I Am: Report of the Inquiry into Discrimination Experienced by Transgender People. January 2008 at 3.40
  33. ^ Human Rights Commission: To Be Who I Am: Report of the Inquiry into Discrimination Experienced by Transgender People. January 2008 at 3.3
  34. ^ Human Rights Commission: To Be Who I Am: Report of the Inquiry into Discrimination Experienced by Transgender People. January 2008 at 3.6
  35. ^ Human Rights Commission: To Be Who I Am: Report of the Inquiry into Discrimination Experienced by Transgender People. January 2008 at 3.7
  36. ^ Human Rights Commission: To Be Who I Am: Report of the Inquiry into Discrimination Experienced by Transgender People. January 2008 at 3.11, 3.12, 3.13
  37. ^ a b Youth’12: Fact Sheet about Transgender Young People, from Clark, T. C., Lucassen, M. F. G., Bullen, P., Denny, S. J., Fleming, T. M., Robinson, E. M., & Rossen, F. V. (2014). The health and well-being of transgender high school students: Results from the New Zealand Adolescent Health Survey (Youth’12). Journal of Adolescent Health, 55, 93–99
  38. ^ Human Rights Commission: To Be Who I Am: Report of the Inquiry into Discrimination Experienced by Transgender People. January 2008 at 3.17. 3.19
  39. ^ Human Rights Commission: To Be Who I Am: Report of the Inquiry into Discrimination Experienced by Transgender People. January 2008 at 3.30
  40. ^ "Community Report – Counting Ourselves". Retrieved 5 September 2021.
  41. ^ Births, Deaths, Marriages and Relationships Registration Act 1995, s28(3)(c)(i)(B)
  42. ^ "Birth Certificate Name and Sex Marker Change". Gender Minorities Aotearoa. Archived from the original on 5 September 2021. Retrieved 26 September 2021.
  43. ^ a b "Information for Transgender Applicants". Department of Internal Affairs. Archived from the original on 27 August 2017. Retrieved 30 June 2017.
  44. ^ "Births, Deaths, Marriages, and Relationships Registration Act 2021 No 57, Public Act – New Zealand Legislation". www.legislation.govt.nz. Retrieved 16 December 2021.
  45. ^ "Information about Changing Sex / Gender Identity | New Zealand Passports". www.passports.govt.nz. Archived from the original on 15 July 2017. Retrieved 30 June 2017.
  46. ^ "Gender on the Driver Licence Register | Waka Kotahi NZ Transport Agency". www.nzta.govt.nz. Retrieved 16 December 2021.
  47. ^ Pega, Frank; Reisner, Sari; Sell, Randall; Veale, Jaimie (2017). "Transgender Health: New Zealand's Innovative Statistical Standard for Gender Identity". American Journal of Public Health. 107 (2): 217–221. doi:10.2105/ajph.2016.303465. PMC 5227923. PMID 27997231.
  48. ^ "Statistical standard for gender, sex, and variations of sex characteristics | Stats NZ". www.censustest.govt.nz. Retrieved 6 January 2022.
  49. ^ Molyneux, Vita (1 August 2020). "Gender-neutral option included in voting enrolment forms for first time". Newshub. Archived from the original on 6 August 2020. Retrieved 26 September 2021.
  50. ^ Chumko, Andre (1 August 2020). "Mx pronouns on voting enrolment forms for first time". Stuff. Archived from the original on 15 July 2021. Retrieved 26 September 2021.
  51. ^ Hansard, First Reading on Statutes Amendment Bill (No 4). 16 April 2014
  52. ^ McClure, Tess (30 July 2021). "'No place in modern New Zealand': government signals conversion practices ban". The Guardian. Archived from the original on 30 July 2021. Retrieved 31 July 2021.
  53. ^ Neilson, Michael (30 July 2021). "Gay conversion therapy to become criminal offence, Justice Minister Kris Faafoi announces". The New Zealand Herald. Archived from the original on 30 July 2021. Retrieved 31 July 2021.
  54. ^ Scotcher, Katie (5 August 2021). "Conversion therapy ban legislation passes first reading at Parliament". Radio New Zealand. Retrieved 6 August 2021.((cite news)): CS1 maint: url-status (link)
  55. ^ Witton, Bridie (5 August 2021). "'Shame': Conversion Therapy bill passes first reading but is opposed by National Party". Stuff. Archived from the original on 6 August 2021. Retrieved 6 August 2021.
  56. ^ "Politicians react as bill to ban conversion therapy passes". Radio New Zealand. 15 February 2022. Archived from the original on 18 February 2022. Retrieved 21 February 2022.
  57. ^ "Births, Deaths, Marriages, and Relationships Registration Bill". New Zealand Parliament. Retrieved 22 August 2021.
  58. ^ "Birth certificate changes welcomed by takatāpui, trans and non-binary people". Human Rights Commission. 10 August 2018. Archived from the original on 2 May 2021. Retrieved 31 August 2021.
  59. ^ "Parliament unanimously passes sex self-identification law, simplifying changes to birth certificates". Stuff. 9 December 2021. Archived from the original on 9 December 2021. Retrieved 13 December 2021.
  60. ^ "Crown Law opinion on transgender discrimination". The Beehive. Retrieved 26 January 2022.
  61. ^ "Sentencing Act 2002 No 9 (as at 05 October 2021), Public Act 9 Aggravating and mitigating factors – New Zealand Legislation". www.legislation.govt.nz. Retrieved 16 December 2021.