Te Aka Matua o te Ture I Law Commission has made 27 recommendations for reform of New Zealand’s anti-discrimination law to provide clearer protection to people who are transgender or non-binary or who have an innate variation of sex characteristics (sometimes known as intersex).

The recommendations are contained in its Final Report “la Tangata: Protections in the Human Rights Act 1993 for people who are transgender, people who are non-binary and people with innate variations in sex characteristics”, which has now been published.

Commissioner Claudia Geiringer says the report’s recommendations strike an appropriate balance between competing rights and interests and aim to remove ambiguity in the current law.

"The la Tangata Final Report is the culmination of over two years of in-depth research, analysis and public consultation," Professor Geiringer says.

The Law Commission carried out extensive public consultation and received feedback from both people who were generally supportive of reform and those who were opposed. 

"We evaluated all the feedback we received, along with the available evidence about the potential benefits and harms of reforming the law. 

"We also considered the workability of reform options and how they would impact on the daily lives of New Zealanders."

The Law Commission’s reports are not binding on the Government. “It's now up to the Government to decide what happens from here", says Professor Geiringer. 

The report’s central recommendation is that New Zealand’s anti-discrimination law, the Human Rights Act 1993, should be amended to clarify that it covers discrimination that is due to a person being transgender or non-binary or having an innate variation of sex characteristics.

Specifically, the Commission has recommended two new prohibited grounds of discrimination:

• 'Gender identity or its equivalents in the cultures of the person' and
• 'Having an innate variation of sex characteristics'.

The existing prohibited grounds of discrimination include things like sex, race, sexual orientation and disability. Professor Geiringer says the Law Commission’s recommendation to add new grounds would bring New Zealand law into line with other countries, such as Australia, Canada and the United Kingdom.

The Final Report also focuses on 19 exceptions in the Human Rights Act that specify circumstances where it is lawful to treat a person differently based on their sex.

The Law Commission has made recommendations on how each of these exceptions should apply to the two new grounds the Commission has proposed. 

Professor Geiringer says these recommendations are designed to strike an appropriate balance between competing rights and interests.