Kōrero: Gender diversity

Whārangi 6. Human rights and discrimination

Ngā whakaahua me ngā rauemi katoa o tēnei kōrero

Members of the gender-diverse and transgender community continue to face discrimination within society and in the law. In 2008 New Zealand’s Human Rights Commission released To be who I am, a report on an inquiry into discrimination experienced by transgender people.

It recommended that:

  • transgender people be able to effectively participate in decisions that affect them
  • the discrimination and marginalisation experienced by transgender people be reduced
  • access to public health services and treatment be improved for transgender people
  • the requirements for changing sex details on official documents be simplified.

Between 2008 and 2019, the Human Rights Commission received almost 2,000 complaints on the grounds of sex (including gender identity and sex characteristics). Of those, 212 were made by trans, gender-diverse, or intersex people. 

The Commission’s subsequent 2020 report, PRISM, based on consultation with members of the gender-diverse community, highlighted important human rights issues that still remain unresolved. The community was particularly concerned about the wording of the Human Rights Act 1993, which did not explicitly provide legal protection from discrimination with regards to gender identity, gender expression or sex characteristics. Other concerns raised by the community included:

  • the safety of and support for gender-diverse young people in school
  • bullying in schools and workplaces
  • the need to educate all young people about gender diversity
  • significant disparities in the delivery of health care to the community, and concerns about lack of access to gender-affirming surgery
  • the need for better collection of data about the gender-diverse community.

Legal recognition

Many of the issues faced by transgender people result from difficulties in having legal documents updated to reflect their gender.

Transgender people can make a statutory declaration to have their passports changed to reflect their gender, or to have an ‘X’ (denoting gender-diverse), rather than ‘Male’ or ‘Female’.

Gender is not shown on a driver’s licence, although it is recorded. A form to make a statutory declaration of change of gender is available.

Good data collection is particularly important for gender-diverse communities, which often fare poorly in health, mental health and other well-being measures. In July 2015 Statistics New Zealand introduced a 'gender diverse' category as part of its official statistical standard for gender identity. However, this is not always understood in the same way by those providing and using the data. In 2020, Statistics New Zealand consulted the public on ways to improve future data collection on sex and gender diversity by taking account of diverse cultural understandings, while also being accurate, inclusive and meeting information needs.

In New Zealand, the sex recorded on an individual’s birth certificate can be changed only if they can provide medical evidence that they have ‘made permanent medical changes’.1 In the past, the Family Court interpreted this to mean that only those who had genital-reconstruction surgery could apply for a change of sex on a birth certificate. However, in June 2008, the Family Court ruled that genital reconstruction surgeries were not always necessary to meet this legal threshold. In 2020, the Human Rights Commission urged a change in legislation to allow changes to birth certificates on the basis of statutory declaration without meeting medical thresholds, and without the involvement of the Family Court. It also recommended that people be allowed to record a non-binary gender identity on their birth certificates.

Safety and health

The Counting ourselves survey of trans and non-binary people in 2018 found higher levels of homelessness, discrimination, mental health issues, and danger from sexual violence than in the wider population. These outcomes were generally worse for members of Asian, Pasifika and Māori communities, and for disabled trans and non-binary people. Bullying on social media had an impact on many community members.

The care of the growing population of elderly people who identify as transsexual or transgender is another area of concern. Many people who have lived as openly transgender for many years feel that they cannot continue to be ‘out’ as transgender in aged-care facilities, for fear of being misunderstood and mistreated by those caring for them.

Employment

Finding employment can be difficult for transgender people – including non-binary people, who do not conform to gender norms, and for those who do not identify as a particular gender. Transgender people may also face discrimination in the workplace, particularly if they transition while remaining in the same job. Employment was the most common area of discrimination identified in the Human Rights Commission’s 2008 and 2020 inquiries, and generated the most complaints to the Commission by members of the gender-diverse community.

Sport

Trans people face difficulties accessing everyday sport and exercise opportunities, and some avoid physical activity because of concerns about how they may be treated. There are significant barriers for trans women seeking to compete in high-performance sport, and some of those they compete against resent their perceived physical advantages. In the early 2020s, sporting bodies continue to struggle to address this issue.

Kupu tāpiri
  1. To be who I am: report of the inquiry into discrimination experienced by transgender people. Kia noho au ki tōku anō ao: he pūrongo mō te uiuitanga mō aukatitanga e pāngia ana e ngā tāngata whakawhitiira. Auckland: Human Rights Commission, 2008, p. 69. Back
Me pēnei te tohu i te whārangi:

Johanna Schmidt, 'Gender diversity - Human rights and discrimination', Te Ara - the Encyclopedia of New Zealand, http://www.TeAra.govt.nz/mi/gender-diversity/page-6 (accessed 20 June 2021)

He kōrero nā Johanna Schmidt, i tāngia i te 5 May 2011, reviewed & revised 4 May 2021 with assistance from Gender Minorities Aotearoa