Potential Law Reform: Should gender be a protected ground under the Human Rights Act?

We are increasingly being asked to advise on issues involving the crossover of employment law and human rights or anti-discrimination laws. One question we get is whether gender, or gender identity, is a prohibited ground of discrimination in the Human Rights Act 1993 (HRA), and thus whether an employee discriminated against because of their gender can bring a discrimination claim pursuant to the HRA.

The New Zealand Law Commission has recently published an Issues Paper – Ia Tangata – A review of the protections in the Human Rights Act 1993 for people who are transgender, people who are non-binary and people who have an innate variation of sex characteristics – which deals with this particular point and a number of other related issues. The Issues Paper calls for feedback on proposed reform to New Zealand’s anti-discrimination laws intended to better protect people who are transgender, non-binary, or have an innate variation of sex characteristics.

One of the recommendations in the Issues Paper is that the HRA is amended to explicitly protect people from discrimination that is linked to the fact that they are transgender, non-binary, or have an innate variation of sex characteristics. The Issues Paper explores how this could be achieved, including whether additions to the list of prohibited grounds of discrimination in the HRA should be made to specifically include that being transgender or non-binary or having an innate variation of sex characteristics is covered. The Issues Paper also explores whether any exceptions in relation to employment should apply.

What does the law currently say?

While gender is not a prohibited ground of discrimination in the HRA, sex is. The HRA does not define sex, so to ascertain whether sex includes gender for the purposes of the HRA, we look to guidance from the Human Rights Commission and case law, and a 2006 opinion from the Acting Solicitor General – Crown Law Office.

Acting Solicitor General – Crown Law Office opinion

In 2005, the question arose as to whether sex as a prohibited ground of discrimination also prohibits discrimination on the basis of gender. This was in the context of a private member’s bill which sought to add “gender identity” as a prohibited ground of discrimination to the HRA.

During the review stage of the bill, the Attorney-General sought the opinion of the Crown Law Office as to whether prohibition of discrimination on the grounds of gender identity is already provided for in the HRA through the prohibition of discrimination on the grounds of sex.

The Crown Law Office said yes – the opinion of the Acting Solicitor General was that sex as a prohibited ground of discrimination includes gender, and therefore no amendment to the HRA to include “gender identity” was necessary.

Human Rights Commission

The Human Rights Commission’s approach is consistent with the Crown Law Office’s opinion. It accepts complaints linked to discrimination based on gender identity, because such discrimination amounts to discrimination based on “sex” as referred to in the HRA. The HRC does, however, consider that this needs to be clearer.

Supreme Court guidance

Further, while whether sex as a prohibited ground of discrimination includes gender has not yet been directly tested by the courts, the Supreme Court has referred to sex and gender interchangeably when listing the grounds of discrimination prevented under the HRA (Air New Zealand Ltd v McAlister [2009] NZSC 78, [2010] 1 NZLR 153 at [43]).

Is law reform required?

Arguably not, if the above position is correct that the HRA already protects against discrimination on the basis of a person’s gender. However, as the Issues Paper points out, there are a number of sensible reasons for reform.

The current approach creates uncertainty, requiring individual litigants to seek guidance from the courts or tribunals. As the Issues Paper notes “People are more likely to understand their rights and obligations when the law is clear and accessible. Clarity, certainty and accessibility of the law can also make dispute resolution more efficient, for example, by encouraging early settlement.”

If amended, the scope of the protections being afforded can be well thought through and defined, again to provide clarity and certainty. For example, a simple addition of “gender” as a protected ground in s 21 HRA may not be desirable or acceptable as it may not be specific enough to include all categories of individuals it is designed to protect.

Submissions

Submissions on the Issues Paper can be made to the Law Commission until 5 September 2024. A full copy of the paper can be found here.

Want to know more?

If you have any questions, please contact our specialist Employment team.

PDF available here.