Time for reform: Protecting gender identity under the Human Rights Act 1993

Abstract

The Human Rights Act is New Zealand’s primary anti-discrimination statute, preventing differential treatment on the basis of a closed list of prohibited grounds. This essay analyses the need to recognise gender identity as a prohibited ground under the Act, and to reform the structure of the Act’s anti-discrimination provisions to become an open-ended list. The essay outlines various forms of discrimination suffered by transgender people, and their status at New Zealand, overseas, and international law. It explores the history of human rights reform in New Zealand through homosexual law reform and the Human Rights (Gender Identity) Amendment Bill 2004. I critique the incorporation of gender identity discrimination into sex discrimination, and argue that a separate ground would serve both remedial and educative functions. Further, reforming the list would provide long-term and inclusive reform for groups beyond transgender people. I conclude that successful reform is both timely and possible.