About the New Zealand Council for Civil Liberties

1. The New Zealand Council for Civil Liberties (‘the Council’) is a voluntary, not-for-profit organisation founded in 1952 which advocates to promote human rights and maintain civil liberties.

Introduction

2. This bill adds definitions of man, woman, male, and female to the Legislation Act 2019. These definitions are reductionist and based on a simplistic view of both human nature and biology.
3. As such, this bill is an attempt to reverse the emerging consensus around the language we use to describe transgender and nonbinary people, which recognises that not all people are biologically in one of the two main sexes and for some people their sexual biology and their gender do not match. 

Our values

4. The Council’s constitution says that we “promote a vision of Aotearoa New Zealand as a democratic and pluralistic society where the rights and liberties of all people are respected.”
5. One of our touchstones is the New Zealand Bill of Rights Act (BORA) which has the purpose of “to affirm, protect, and promote human rights and fundamental freedoms in New Zealand”.
6. Gender diversity is a normal part of human variation across history, transgender and nonbinary people have the right to live their lives with the same freedoms as everyone else.

Analysis

Purpose

7. When considering bills we endeavour to weigh the purpose of the bill against any harms or restrictions of liberty that it might cause. This is difficult in this case because the purpose of this bill seems to be to cause harm and restrict liberty.
8. We fail to see any need for this bill and cannot see how it will help. The bill’s explanatory note says that it will “ensure that language in law reflects biological reality”, while neglecting the reality that many people are biologically intersex and all people are more than just their biology. 
9. We are not aware of any problems caused by the current lack of definitions and we have full confidence that the courts are able to deal with definitional issues if they arise.

Gender Discrimination

10. The purpose of this bill appears to be to encourage increased discrimination against transgender and nonbinary people.
11. The NZ Bill of Rights includes the right to be free of discrimination. In Aotearoa New Zealand this right is protected by the Human Rights Act which currently does not protect gender expression. 
12. The Council’s submission to the Law Commission’s recent Ia Tangata review supported adding protection against discrimination on the basis of gender to the Human Rights Act. The Law Commission’s final recommendations include this recommendation.
13. Rather than passing this bill we recommend adding protection for transgender and nonbinary people to section 21 of the Human Rights Act.

Age Discrimination

14. This bill places significant emphasis on the word “adult”. In New Zealand law, adults are people aged 20 years or older.  Section 21(1)(i) of the Human Rights Act prohibits discrimination based on age against anyone aged 16 years or older. This bill therefore encourages discrimination on a prohibited basis.  

Attorney General’s Bill of Rights Section 7 report

15. The Attorney General’s BORA Section 7 report has concluded that the impositions on our liberty in this bill can not be justified.
16. The Council believes that Parliament should be obliged to give significant weight to a negative Section 7 report, ideally causing the bill to be rejected or redrafted. The Council notes our strong preference for a written constitution which elevates the Bill of Rights Act above ordinary laws.

Conclusion

17. We recommend that this bill should not proceed. 
18. The Council thanks members of the Committee for their time and consideration of our submission.