URGENT NEW ZEALAND ANTI-DISCRIMINATION REFORM
The ILGA (International Lesbian, Gay, Bisexual, Transgender & Intersex Association) Oceania Board & Members call on the Prime Minister Jacinda Ardern and her Government to strengthen legal protections that make discrimination against trans people unlawful.
A New Zealand tenant (Kristine Ablinger) was given 3 hours' notice, before being evicted for being transgender. The eviction was ruled as lawful, due to the provision prohibiting discrimination in "Land, housing, and other accommodation" [Human Rights Act 1993 (NZ), s53] exempting homeowners who share accommodation [Human Rights Act 1993 (NZ), s54]. Whilst Human Rights Act 1993 (NZ) protects against discrimination on the ground of "sex" and "sexual orientation" [Human Rights Act 1993 (NZ), s21], it does not do so for "gender identity". The NZ Human Rights Commission has interpreted "sex" to include "gender", however, this deficiency in the legislation is unacceptable. This legal challenge's failure highlights the need for:-
1) "Gender" needs to be explicitly included for anti-discrimination protection.
2) Share accommodation should not be exempt from accommodation discrimination (the reason Albinger's legal challenge ultimately failed).
In 2004, there was an attempt to reform the Act through the Human Rights (Gender Identity) Bill by adding gender identity as a prohibited ground of discrimination. However, to the surprise of the LGBTQIA+ community in New Zealand, the Bill was withdrawn in 2006 following an opinion from the Solicitor-General. It concluded that the amendments were unnecessary because discrimination on the basis of gender identity was already prohibited as sex discrimination, however, without explicit protection, trans New Zealanders are beholden to the judiciary and the executive interpreting "sex" to include ‘'gender identity" and "gender expression".
Ratu Eroni Ledua Dina (ILGA Oceania Trans Subcommittee Chair): "Transgender people from around the globe are about to celebrate "International Transgender Day of Remembrance" on the 20th of November. This is a time we memorialize trans souls killed through institutionalized transphobia. What happened here to Kristine is a blatant challenge to her existence. This eviction perpetuates stigma and discrimination towards transgender people and, inevitably it will lead to much worse if this is not rectified, by order of reforming the Human Rights Act 1993 (NZ), through the entrenchment of gender identity and various expressions in its most important aspects. All human life deserves security and protection and this has been compromised for Kristine. It is high time that there be concerted efforts from government and its support stakeholders towards the adoption of recommendations made from the third UPR stating NZ's need to improve the rights of LGBTIQ people. Therefore, ILGA Oceania calls on the State to cultivate a culture of inclusion and full protection with accountability and equal protection."
Miki Wali (ILGA Oceania Alternate Co-Chair): "In recognizing Transgender Awareness Week, noting also the Pandemic we are in, the full recognition of Transgender Rights is fundamental within Human Rights Law and it's practicality must be taken into full consideration. Transgender Rights are Human Rights. It must be clearly outlined that housing rights of transgender people and information on procedures on how to file complaints of housing discrimination is imperative. National law that explicitly prohibits discrimination based on gender identity and sexual orientation is essential. Existing laws must provide real protection in this and similar situations."
Rāwā Karetai (Aotearoa, New Zealand ILGA Oceania Regional Representative): "ILGA Oceania is concerned and alarmed that the Human Rights Commission is legally entrenching the gender binary into New Zealand law based on this ruling. This case strengthens our call for action around making sure that the Human Rights Act needs to change to explicitly protect people from discrimination based on their gender identity. ILGA Oceania is trying our best to help fix the injustices of the world which includes cases like this".
Ken Moala (ILGA Oceania Co-Chair): "ILGA Oceania is very concerned for its members, including the transgender community throughout Oceania, whose mental health and wellbeing are impacted by the Human Rights Act, as it does not fully protect them from discrimination based on their gender identity. It is extremely sad, not to mention inappropriate that Kristine Ablinger was kicked out of her flat for simply being trans. We empathise with Kristine in her current predicament. Besides offering our voice, we send her lots of care, compassion, and trust so this does not happen again. Kristine deserves the right to the liberty to express herself authentically, so it is crucial that there is an immediate reform and removal of all institutionalized homophobia/transphobia/biphobia.
Trans people face many challenges to their dignity. In Oceania, the Trans community is a functional community referred to in many ways such as "sistergirls", "brother boys", "whakawahine", "akavaine", "faafafine", "leiti", "vakasalewalewa", "fakafifine", "mahu", "rere', "palopa", "binabinaine", "pina" and other terms. All they seek is basic human rights that ensures dignity, equality and security for all."
New Zealand, through its third United Nations Universal Periodic Review (UPR) last year, had a specific recommendation calling on the State to fully to fully improve the rights of LGBTIQ people. The countries that provide recommendations at the HRC are Chile/Iceland & Australia, which were welcomed by the Head of Delegation for NZ. The rights and dignity of Transgender people should always be protected. NZ has made strong international commitments and statements on human rights and its domestic approach is fundamental.