The Govt on trans issues ...

Posted in: Features
By Rainbow Wellington Chair Tony Simpson - 26th July 2011

Rainbow Wellington has enlisted the help of MP Jim Anderton to put forward a number of questions in Parliament on progress on the HRC's Transgender Inquiry. Read the answers from the Government and Rainbow Wellington Chair Tony Simpson's assessment of the situation here:

In 2007 the Human Rights Commission published a report To Be Who I Am as the outcome of a significant consultative enquiry into the position of transgender and related citizens in New Zealand. This report made a number of recommendations aimed at ending discrimination against and improving the situation of these citizens. The Clark government then in office publicly committed to implementing these and allocated this task to the Minister for Human Rights matters, the Hon Lianne Dalziel.

This government then fell from office in the 2008 general election and the incoming Key government as well as failing to commit publicly to these recommendations did not appoint a specific portfolio Minister for human rights which is encompassed in the role of the Minister of Justice, the Hon Simon Power. Requests for him to report on progress with the recommendations have been unsatisfactory. A request to the Prime Minister to state a government position, notwithstanding that it was repeated, elicited no response of any description.

Rainbow Wellington, at the initiative of a member, therefore formulated the recommendations as Questions for Written Answer and forwarded these to the Hon Power. He in his turn passed some to colleagues and others to officials for a response. The results are summarised below. Our thanks are extended to the office of the Hon Jim Anderton for agreeing to put these questions to the Minister.

Q: What progress has been made in implementing the recommendation of the HRC 2007 Report To Be Who I Am that for the avoidance of doubt protection from sex discrimination in the Human Rights Act 1993 includes protection from discrimination on the grounds of gender identity?

A: The former Attorney General received legal advice clarifying that the Human Rights Act 1993 protects people from discrimination on the basis of ‘sex’ which includes gender. There is nothing to suggest that this prohibited ground of discrimination would be construed so narrowly as to exclude trans people from protection. A law change is unnecessary at this time.

Q: What progress has been made in implementing the recommendation to develop a human rights education program to address human rights and discrimination issues for trans people?

A: The report considered that a human rights education program was necessary to improve understandings about human rights and discrimination issues for trans people and that this recommendation fell within the purpose and functions of the Human Rights Commission. As well as holding the Transgender Inquiry and working to implement all its recommendations, the Human Rights Commission has worked to improve the public’s understanding, and that of the transgender community, of gender identity issues by: running workshops in five cities alongside the Assume Nothing exhibition (from April 2008 – February 2010); hosting two national human rights training hui for trans people including opportunities for them to meet with government officials; collating FAQs, resource lists links and workshop notes from that human rights education work which should soon be on the HRC’s website; and created on line FAQs and resources, some specifically targeted to enable schools to support trans students. The HRC has also: included a chapter on the rights of sexual and gender minorities in Human Rights in New Zealand 2010; supported the Outgames Human Rights Conference and the pre-conference regional hui for trans and intersex people; worked with other national human rights institutions in the Asia Pacific region on these issues, including hosting a Yogyakarta Principles Forum at the Outgames Human Rights Conference; and distributed the To Be Who I Am e-newsletter updating people on that progress.

Q: What progress has been made on implementing the recommendation to allow the Family Court to make a declaration as to sex for overseas-born New Zealand citizens?

A: The Births, Deaths, Marriages and Relationships Declaration Act was amended in 2009 to give effect to this recommendation.

What progress has been made in implementing the recommendation to simplify the requirements for changing sex details on a birth certificate, a passport, and other documents to ensure consistency with the Human Rights Act?

A (from Hon Nathan Guy): I am advised that in light of the 2008 Family Court “Michael” decision, the Department of Internal Affairs considers that further amendments to Part 5 of the Birth, Deaths, Marriages and Relationships Registration Act are not necessary at this time. The Department has updated its relevant passports and citizenship policies in light of the findings of To Be Who I Am report to ensure greater consistency.

Q: What progress has been made on implementing the recommendation to improve trans people’s access to public health services and develop treatment pathways and standards of care for gender reassignment services?

A (from the Hon Tony Ryall) I am advised that the Ministry of Health contacted Counties Manukau DHB to manage a project to begin addressing the findings of the report. The development of the guidance was supported by consultation with the HRC and consumers from the trans community. The document will be published on the Ministry website soon. There will also be a number of hard copies available for health professionals.

In summary: Some progress has been made but it has been patchy and rather slow going.

An attempt to get a Select Committee report on amendments to the Human Rights Act to include transgender matters was abortive for reasons which have never been made clear, but which may have had something to do with the legal view that this is not an issue. More recently the same objective has re-surfaced from within the trans community but it seems clear that there is no chance of any amending legislation at the present time. But even if such legislation is subsequently enacted that does not resolve matters. It would still require a test case or cases to find out where the boundaries lie in practise.

My own view has been that in this and in others relating to the recommendations insofar as they remain unimplemented wholly or in part that the best way to go is for someone in the trans community or some other interested party to identify such a case or cases and to pursue these through the HRC in a manner similar to our own blood donation and McDonalds wifi initiatives.

Tony Simpson
Chair
Rainbow Wellington