DLA Piper submission on the Law Commission's Ia Tangata Issues Paper

The Law Commission is currently reviewing the protections in the Human Rights Act 1993 (the Act) for individuals who are transgender, non-binary, or have innate variations of sex characteristics. We submitted on the Commission's Issues Paper, agreeing with the Commission's preliminary conclusion that amendments to section 21 of the Act are necessary to ensure adequate protection against discrimination for these groups.

Our submission included the following key points:

• Amendments to section 21: The Act should be amended to include new stand-alone prohibited grounds of discrimination to section 21 for 'gender' and 'sex characteristics'.
• Symmetry in protections: Any new and amended prohibited grounds of discrimination should be symmetrical based on characteristics that every individual has. This ensures the widest possible protection from discrimination for everybody and removes any potentially burdensome requirement for an individual to prove they are entitled to protection under that ground.
• Flexibility in application: These new grounds should not be subject to defined terms within the Act, to give the Human Rights Review Tribunal and other relevant New Zealand courts sufficient flexibility to apply each ground on a case-by-case basis (as is the case for many of the other prohibited grounds of discrimination).
• Review of existing exceptions: Exceptions to sex-based discrimination in Part 2 of the Act should be reviewed and amended to reflect the inclusion of 'gender' and 'sex characteristics.'
• Clarification in social contexts: Most if not all exclusions for social matters such as employment, education, and the provision of goods or services should clearly relate to discrimination based on 'gender'.
• Medical and biological contexts: Exceptions relating to 'sex' or 'sex characteristics' will most often be appropriate when there is a medical purpose or when the context contemplates that a person's biological sex or sex characteristics will be known. Where such situations do not already exist in the Act or are not clearly provided for, they should be clarified.

We also addressed the Commission's question regarding whether section 48 of the Act – relating to insurance – should be amended. We believe it should, by including 'any sex characteristics' and 'any gender' among the grounds on which insurers can offer different terms and conditions. Our reasoning is as follows:

• Consistency with existing interpretation: This would ensure that clarifications remain consistent with the current interpretation of 'sex,' which includes both sex characteristics and gender. Amending section 48 would clarify its application with respect to the new prohibited grounds.
• Safeguards for insurers: Section 48 already requires that different terms offered by insurers be based on actuarial or statistical data. We think this qualification will continue to provide an appropriate safeguard, as it only permits differential treatment where there is a sound evidence base.

The Law Commission's Issues Paper and Ia Tangata review can be found here.

Please get in touch if you would like to discuss the Ia Tangata review further.