Amicus Curiae: Transgender Rights in New Zealand: How Far Have we Really Come?

By Nithya Narayanan

“Feminism is fundamentally about broadening the parameters of gender – not narrowing them.”

As far as gay rights go, it would not be untruthful to say that New Zealand is a bit of a world leader. By the time Australia legalised same-sex marriage in 2017, New Zealanders had already been enjoying the same right for over four years. We have robust anti-discrimination laws in place. Our Marriage (Definition of Marriage) Amendment Act enables same-sex couples to adopt children. Perhaps most importantly, our gay community has long been well-represented in Parliament. Finance Minister Grant Robertson, ex-Attorney General Chris Finlayson and Labour MP Louisa Wall are among the politicians who openly identify as gay. Their candour about their sexuality has not prevented them from having long and successful careers in politics.

By contrast, the transgender members of our community are far less visible. When they do appear on our television screens or in our newspapers, it is often in relation to a national controversy. Transgender weightlifter Laurel Hubbard attracted criticism when she competed in the women’s category at the 2018 Commonwealth Games. More recently, the story of Penelopy Mansell has been the subject of much scrutiny. Mansell, who is transgender, was declined membership by a women’s gym in Wellington. Upon asking to join, Mansell was informed that the gym policy prevented any transgender person from becoming a member until they had had gender reassignment surgery. However, having the surgery in New Zealand is easier said than done. As of 2017 there were 71 people on a Ministry of Health publicly funded waiting list for male to female surgery, and 19 waiting for female to male surgery.  According to Mansell, there is currently a 30-40 year waiting list – meaning that if she wanted to transition in New Zealand, she would have to wait until she was at least 89.

That’s the situation for biological change – but what does it take to legally change your gender in New Zealand? Currently, individuals need to apply to the Family Court for a declaration before they can change the gender on their birth certificate. The Family Court can only make a declaration if the individual has had medical treatment to change their gender – although the New Zealand Government website notes that this doesn’t necessarily mean having had full reconstructive surgery. The process for obtaining a declaration can also be very expensive. The Human Rights Commission has long maintained that this is discriminatory. Finally, in August 2017, the Government Administration Committee recommended that (then) Internal Affairs Minister Peter Dunne commission a review of the Births, Deaths, and Marriages Act. An amendment of the Act – which would allow anyone to self-declare their gender identity – is now almost at its second reading in Parliament.

But not everyone supports it, and the widespread negative response has shown just how much intolerance there still is. According to writer and feminist activist Renee Gerlich, the new legislation would “undermine” the work of the suffragettes. Gerlich argues that what suffragettes fought for – the ability of women to make demands that pertain to their sex – will be displaced if “the definition of what a woman is fundamentally changed”. Gerlich is often accused of being a “TERF” – a trans-exclusionary radical feminist. It’s a term used to describe a category of people who object to trans individuals identifying as women. Australian-born writer Germaine Greer recently made headlines when she said that transgender women are “not women” because they do not “look like, sound like, or behave like women”. These statements are reflective of a society which accepts the notion of the trans individual, but balks at the proposition that they should receive actual rights.

Statutory change is one of the primary means of delivering those rights. In order to evolve as a tolerant society, it is imperative that we talk openly and constructively about how we can legislatively affirm the rights of our trans community. The impending amendment of the Births, Deaths and Marriages Act is no doubt a positive move – but we also need to consider reviewing the Human Rights Act. While Section 21 (1) (a) of the Act identifies sex as one of the prohibited grounds of discrimination, it is still not completely clear whether this includes gender identity. According to the Human Rights Commission, transgender individuals may be protected from unlawful discrimination under the Act, but this has not been tested in New Zealand courts. If the protection does exist, it seems to be somewhat precarious. Why not make specific reference to gender identity in the Act? Sexual orientation has long been recognised independently as a prohibited ground.

I sincerely hope that the amendment to the Births, Deaths and Marriages Act makes it through Parliament, and that trans individuals are given the capacity to self-identify. I also hope that the Human Rights Act will be revised to protect transgender rights more explicitly. But most of all, I hope that “feminists” like Germaine Greer and Renee Gerlich realize that feminism is fundamentally about broadening the parameters of gender – not narrowing them. It is no longer sufficient to ‘accept’ the transgender community without giving them tangible outcomes. Is that ‘T’ in LGBT mere tokenism? If the answer is no, then our law and policy needs to start reflecting it.

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