In this project, Te Aka Matua o te Ture | Law Commission will examine the protections in the Human Rights Act 1993 for people who are transgender, people who are non-binary and people with innate variations of sex characteristics.
The Human Rights Act protects the right to freedom from discrimination – for example when accessing education, employment, housing, and goods and services. It also covers some associated issues (such as sexual and racial harassment).
It is important to note that, in this project, the Law Commission will not review provisions in the Human Rights Act that relate to the incitement of racial disharmony. The Law Commission plans to review these provisions in a separate project.
Further information on the scope of the project and the timeframe for the review can be found in the terms of reference for the project.
There will be an opportunity for the public to submit their views on reform options in mid-2024.
Background to the review
The Human Rights Act 1993 is an anti-discrimination law. It seeks to ensure that people in Aotearoa New Zealand are not unfairly subjected to different treatment – for example, when accessing education, employment, housing, goods and services, and public facilities. As well as setting anti-discrimination standards, the Human Rights Act explains how these standards will be monitored and enforced.
Key to the Human Rights Act is section 21, which lists “prohibited grounds of discrimination” (things like sex, religious belief, colour, race, disability and sexual orientation). The Human Rights Act sets out the circumstances in which it is unlawful to treat someone differently and worse than others based on one of those prohibited grounds.
It is not always unlawful to treat someone differently and worse than others based on a prohibited ground. For example:
- The Human Rights Act does not cover the way people behave in truly private contexts. The Act generally only applies to private people and organisations when they engage in certain public-facing activities (such as being an employer or landlord).
- The Human Rights Act distinguishes between differences in treatment that are justified and differences in treatment that are unjustified through a range of methods. This allows for competing rights and interests to be weighed.
For those who want to learn more about how the Human Rights Act operates, we have prepared a Beginners’ Guide. Te Kāhui Tika Tangata | Human Rights Commission also has information available on its website.
The Law Commission has been asked to look at protections in the Human Rights Act for people who are transgender, people who are non-binary and people with innate variations of sex characteristics. As part of our review, we will consider the meaning of these terms and whether they are the best way to refer to the relevant communities.
The current list of prohibited grounds in the Human Rights Act does not expressly refer to people who are transgender and/or non-binary. It does not refer to people with variations of sex characteristics. The list of prohibited grounds does not contain the term “gender”, nor related terms such as “gender identity” or “gender expression”. It does not contain the term “intersex”.
Discrimination on these bases may already be prohibited by one or more of the current grounds listed in section 21 of the Human Rights Act although this has not yet been considered by a New Zealand court or tribunal. For example, the Government considers that the existing ground of “sex” covers discrimination against people who are transgender, non-binary and/or have innate variations of sex characteristics (although it considers the law could be clearer). Te Kāhui Tika Tangata | Human Rights Commission is also happy to accept complaints of discrimination on this basis. In some overseas jurisdictions, the ground of disability has been successfully relied on.
Terms of reference
Scope of the review
The Law Commission will examine whether the current wording of the Human Rights Act adequately protects people who are transgender, people who are non-binary and people with innate variations of sex characteristics and, if not, what amendments should be made. The Law Commission’s review will include, but not be limited to, consideration of the following matters:
- Whether to extend, modify or further define the prohibited grounds of discrimination in section 21 of the Human Rights Act;
- In the light of any amendments the Law Commission may recommend to section 21, whether the techniques used in the Human Rights Act to distinguish between justified and unjustified discrimination remain adequate to protect the rights of all New Zealanders. In particular, the review will consider the various exceptions in the Human Rights Act that outline when differences in treatment are permissible;
- Whether any amendments are desirable to the sub-part in the Human Rights Act named “Other forms of discrimination”;
- Whether the law is consistent with Te Tiriti o Waitangi | the Treaty of Waitangi and ngā tikanga Māori, and whether it is responsive to the needs and concerns of Māori;
- Whether any consequential amendments to other legislation are desirable and/or whether any reforms we propose to the Human Rights Act may have consequential implications for other legislation.
Matters that will not be included in the review
There are several limitations on the scope of this review.
First, the Law Commission has only been asked to examine the adequacy of protections in the Human Rights Act. This project will not involve an independent review of any other New Zealand laws (although we may recommend consequential amendments to other legislation and/or consider the consequential implications for other legislation of any proposals for reform). For example, the project will not involve an independent review of references to sex or gender in other New Zealand legislation.
Second, this also means the Law Commission will not be directly reviewing the human rights protections found in other human rights statutes (such as the New Zealand Bill of Rights Act 1990) or at international law. The New Zealand Bill of Rights Act protects a range of rights such as fair trial rights and the freedoms of opinion and belief, expression, religion and association. By contrast, the Human Rights Act primarily relates to anti-discrimination law.
Third, the Law Commission has not been asked to review the Human Rights Act as a whole. The focus of this review is specifically on protections in the Human Rights Act for people who are transgender, non-binary and/or have innate variations of sex characteristics.
Finally, the Law Commission has decided that, in this project, it will not review:
- Sections 61 and 131 of the Human Rights Act, which both relate to the incitement of racial disharmony. The Law Commission plans to review these provisions in a separate project on legal responses to hate in Aotearoa New Zealand.
- Section 63A of the Human Rights Act, which relates to conversion practices. This provision was enacted in 2022 after extensive consultation. It is too soon to reconsider the policy on which it was based or to evaluate how it is working in practice.
Process and timing
The Law Commission expects to publish an Issues Paper in mid-2024 and to provide opportunities for public engagement, including submissions.
The Law Commission anticipates there may be wide interest in this review. Those with a particular interest may include people from the following (overlapping) groups: those who are transgender, non-binary and/or have innate variations of sex characteristics; experts; Māori; women’s groups; rangatahi/young people; and people from Aotearoa New Zealand’s ethnic minority communities.
The Law Commission intends to report to the Minister responsible for the Law Commission by the end of June 2025. It will then be up to the Government whether to accept any recommendations the Commission makes for reform of the law.