Wishful thinking to be elevated to a human right

Ideology overrules reality in the Law Commission report.

Many sex realists were left incredulous last week when the NZ Law Commission released its Ia Tangata report, recommending that ‘gender identity’ and ‘innate variations of sex characteristics’ be added to the list of characteristics protected from discrimination under the Human Rights Act. (HRA)

A ‘deeply held internal feeling’ that is subjective, ever-changing, and disconnected from reality has been declared by the Law Commission (LC) as deserving protection under human rights law. And, for the sake of affirming the wishful thinking of transgender and non-binary identities, every hard-won protection put in place in the HRA for the safety, dignity, and fairness of women and girls is to be sacrificed.

Click here for a list of the LC’s 27 recommendations and to access a two-page summary or the 30-page Executive Summary of the report. [Numbers in brackets below relate to the paragraphs in the full report.]

Read on for RGE’s deeper dive into what the LC has recommended and what we can do about it. (Apologies… it is l-o-n-g.)

Note: This substack focuses on the negative effect that adding ‘gender identity’ will have for girls and women, and for schools.

It does not address the separate topic of “innate variations of sex characteristics” which are medical conditions that should not be conflated with policies about ‘identity’. As the LC says, “Many variations are not noticeable to other people” [2.27] and they are rare conditions that can easily be managed on a case-by-case basis.

Nor does this substack address the impact of the LC’s proposals on te ao Māori, leaving that to others who have the appropriate expertise.

RGE opposes discrimination in everyday life against people with a transgender identity but, where there are protections for ‘sex’ under the HRA, we insist those must be upheld for the dignity and safety of women and girls and should not be overruled in favour of males who have simply decided they have a female ‘gender identity’.

Nothing to see here

In a sneaky diversionary tactic, the foreword of the report says, “For the most part, these reforms will result in quite minor changes to current practice,” and media commentary has echoed this minimisation so that most of the public remains oblivious to the very significant changes that have been recommended.

The Commission is able to describe its proposals as “minor changes to current practice” because, since a Crown Law opinion in 2006, the Human Rights Commission has been advising everyone that ‘gender identity’ is already a protected characteristic under the ‘sex’ category in the HRA. For nearly 20 years, government agencies, schools, hospitals, councils - every official body - have proceeded as if ‘gender identity’ was protected in law, although the Crown Law opinion has never been tested in court. [4.117]

The LC report says “Reform of section 21 would improve the accessibility of the law. It would mean people do not need to rely on statements from Crown Law or the Human Rights Commission or on advice from lawyers or community organisations to understand their rights and obligations. [4.136]

This “minor change in current practice” is actually a hugely significant change that robs women of their established human rights.

If the government enacts the Commission’s proposals, the protections currently provided for ‘sex’ in the HRA will be overruled by the new protected category of ‘gender identity’. Legal protection will be removed for:

Single-sex schools

Single-sex public facilities (toilets, changing rooms, hospitals, prisons, refuges)

Single-sex accommodation (unless it can be proven discrimination is needed for privacy or welfare reasons)

Single-sex sports (except under very specific circumstances)

Single-sex courses and counselling.

These are not minor changes! The Commission’s report blithely undoes decades of progress for women by destroying the social contract that allows women and girls to safely participate in public spaces.

Why has the LC abandoned women and girls?

The simple answer is, the Commisssion thinks the dignity and autonomy of transgender and non-binary people are more important than those same ideals for women and girls.

There is, however, a danger that, in singling out the rights of cisgender women as its own category, we might downplay the potential effects of reform on other affected groups or communities or appear to treat cisgender women as a homogeneous group with one agreed set of rights, interests and perspectives. There are many groups whose rights, needs, perspectives and concerns we need to consider in this review. [3.101]

Starting with such a fundamental flaw in its thinking, it is unsurprising that the LC’s final report is also fundamentally flawed.

Flaw #1 - Gender identity is true

The LC firmly believes in ‘gender identity’ and discounted any other interpretation of the concept.

Of those submitters who opposed reform of the Human Rights Act, many told us that gender identity is an “ideology”, a “belief system” or “a new social construct”, with some accordingly questioning the validity of transgender and non-binary identities. Some submitters told us it was obvious from the Issues Paper that the Law Commission had ascribed to “gender ideology”. [3.133]

For example, Lesbian Action for Visibility Aotearoa stated in its submission:

[The Issues Paper] uses the language and concepts of the transgender belief system (trans ideology) throughout, thus giving a very clear message to potential submitters, that the authors, and indeed the Law Commission itself, unreservedly accepts that belief system … Gender Identity is not based in material reality. It is a purely subjective feeling … [Gender identity and gender expression] are part of a belief system held by only some of our population. [3.134]

Before it had even started hearing submissions, the LC held the view that ‘gender identity’ is real and true and was using the ideological language (‘cisgender’, ‘assigned sex at birth’ etc) that goes with that belief.

We agree that the Issues Paper proceeded on the assumption that gender identity is not simply a belief or ideology and that some people have a deeply felt, internal and individual experience of gender that does not correspond with the sex they were assigned at birth. That remains a starting point for this review. [3.138]

We heard from many people in consultation who are transgender or non-binary and whose individual experience of gender is deeply held. We do not think their experiences can simply be dismissed as a matter of ideology or belief. [3.139]

This undisguised ideological capture has prevented the Commission from neutrally and objectively evaluating the legal impacts of ‘gender identity’ on behalf of the whole population.

Flaw # 2 - Sex is is impossible to define

The Law Commission has succumbed to the ludicrous view that human sex cannot be defined.

“Some scientists consider this binary sex classification to be an overly simplistic way of understanding sex in humans. For example, some scientists describe sex as a spectrum or a continuum or refer to the variability of human sex characteristics as a reason why a binary classification is overly simplistic.” [3.108]

Citing the contradictory outcomes of the For Women Scotland Supreme Court case in the UK and the Tickle vs Giggle case in Australia, the Commission concludes, “These overseas cases illustrate that the legal meaning of sex can vary depending on context and to achieve different policy aims.” [3.121]

The LC fails to mention that the outcome of the Tickle vs Giggle case rested on the fact that ‘gender identity’ has replaced ‘sex’ as a protected characteristic in Australia’s Sex Discrimination Act. The Commission’s recommendations are for New Zealand to follow suit and legislate so that men (with 'a ‘gender identity’) cannot, by law, be excluded from a woman-only app or even from lesbian-only events.

That ‘sex’ is a protected characteristic in the current HRA is an inconvenience to gender ideology, so the LC has simply declined to define what it means, saying

“Our research indicates that sex is a functional term that is used in different ways depending on the relevant context and the purpose for which the term is being used. Nor do we think that defining what sex means at the outset of our analysis is a helpful starting point for this review.” [3.105]

Meantime, the LC has provided no workable definition of what it means to add “gender expression and the relationship between a person’s gender identity and their sex assigned at birth” to the HRA.

“We consider the definition of gender identity should refer to the “relationship” between (rather than a “difference between”) a person’s gender identity and sex assigned at birth. This broader language could include someone who has detransitioned or retransitioned as well as someone whose gender identity has always been the same as their sex assigned at birth.” [7.96]

Women’s rights are to become open season for anyone who wants to claim them.

Flaw #3 - Women’s voices don’t count

In a remarkable double standard the Commission accepts anecdotal evidence of discrimination experienced by transgender people, while discounting evidence supplied by women of the dangers they face when single-sex spaces are compromised.

While acknowledging the limitations of self-reported data [4.38], the LC continues to use such data to support its assertion that, “The history of disadvantage, marginalisation and discrimination experienced by people who are transgender or nonbinary or who have an innate variation of sex characteristics is beyond doubt.” [4.39]

At the same time, it completely dismisses the valid concerns of women:

“In consultation, we also heard concerns from many submitters that cisgender women and girls will be at risk of harm if the law enables people who are transgender to use singlesex facilities that align with their gender identity. Some submitters referred to high rates of male violence against women, including sexual violence. Some told us there is a lack of evidence that transgender women are less likely than cisgender men to commit such violence.” [14.56]

“While public bathrooms and changing rooms may be potential sites of male offending against women, we are not aware of any evidence to suggest this is common. We are not aware of studies into the prevalence of offending in these settings in Aotearoa New Zealand. However, a study from the United States indicated that violence and privacy related crimes in public bathrooms and changing rooms are rare.” [14.61]

Without an ounce of irony the Commission says:

“It is particularly demeaning and harmful to dignity to be denied opportunities to participate in society because of something that is intimately connected to your sense of personal identity.” [4.48] , and

“It is clearly harmful to human dignity to be denied opportunities to participate in society because of something as deeply personal as one’s gender identity or sex characteristics.” [4.64]

What about the dignity, and denied opportunities of women and girls? What about the centuries-old discrimination that women and girls have suffered?

The LC commiserated with submitters who identified as transgender when they said that being deemed unworthy by society takes a widespread toll on them and that the discrimination they experience is humiliating and dehumanising. [4.62] But when women talked about being humiliated and dehumanised their experiences were called “an unsubstantiated concern about long-term impacts”. [3.38]

The Commission earnestly claims to have considered the impacts of reform and weighed up the competing rights of different groups [3.31] but in every circumstance their decisions have landed on favouring the wishes of those with transgender identities over the facts of women’s reality.

Flaw #4 - The horse has already bolted

The Commission contends that, “Recognition that it is legitimate for a person’s gender identity to differ from the sex the person was assigned at birth is deeply embedded in New Zealand law, including in the Human Rights Act itself.” [3.140]

In support of this argument it cites the BDMRR (sex self-ID law) and four other acts that use the term ‘gender identity’ as a synonym for ‘sex’.

The HRA and two more of these Acts date from long before the concept of ‘gender identity’ was ever in public discourse and it can safely be assumed that the term was being used at the time as a synonym for binary sex. The other three Acts cited have been passed recently, under the influence of transgender ideology, and cannot fairly be described as deeply embedded in law.

Note that the lack of a reliable birth certificate, courtesy of our BDMRR (sex self-ID law), is cited twice by the LC as justification for the inability to preserve single-sex spaces. [12.67 & 14.44] The piece of paper that we were assured during the BDMRR debate was only an ‘administrative adjustment’ is, as predicted, now being used to claim that it is not possible to police single-sex spaces.

Flaw #5 - Ask an echo chamber of experts

The Law Commission met twice with an Advisory Group and says, “Experts were invited to join the group based on their substantial knowledge in relevant fields and did not represent the interests of any specific sector, stakeholder or special interest group.” [1.61 Emphasis added]

No special interest groups? You be the judge of that!

The Law Commission’s Expert Advisory Group was:

Ahi Wi-Hongi - National co-ordinator of Gender Minorities Aotearoa. (A woman who identifies as a man.) GMA has published a guide called “Anti-Transgender Extremisim” in which people critical of gender ideology are likened to fascists and white supremacists. (1)

Professor Claire Charters - a Professor at the University of Auckland Faculty of Law, specialising in indigenous peoples’ rights in international and constitutional law, and a member of the Human Rights Commission.

Frances Joychild KC - Barrister specialising in civil litigation, human rights, employment, and public law. Previously served on the Law Commission and the Human Rights Commission.

Jack Byrne - Human Rights consultant at TransAction. Senior researcher for the Counting Ourselves survey. (A woman who identifies as a man.)

Jelly O’Shea - a member of Intersex Aotearoa and Te Ngākau Kahukura, a rainbow advocacy group.

Mani Bruce Mitchell MNZM - an intersex activist and counsellor, Executive Director of Intersex Trust Aotearoa and member of WPATH (World Professional Association for Transgender Health), which was discredited in 2024 by its own leaked messages. (2)

Professor Paul Rishworth MBE KC - a barrister and Professor in the Faculty of Law at Auckland University, his interests are in human rights, public and administrative law, and comparative constitutional law.

Phylesha Brown-Acton MNZM - a Niuean fakafifine LGBTQI+ advocate, Executive Director of F’INE Pasifika.

Susan Hornsby-Geluk - managing partner at employment law firm, Dundas Street Ltd.

---

Half the population don’t matter

Unable to break out of its adherence to transgender ideology, the Commission has grossly betrayed women. Here are just 5 of the 27 recommendations, all of which roll back the rights of women and girls.

#R15 - No more single-sex schools

There are two parts to the HRA: Part 1, which applies to government supplied facilities and services, and Part 2 which applies to those provided privately. The LC report debates inconclusively about whether schools come under the jurisdiction of Part 1 or 2 but, no matter which is correct, the outcome is the same.

Part 2 of the Act (s57) does not allow any discrimination in school enrolments or the provision of benefits or services “by reason of any of the prohibited grounds of discrimination”. This means that as soon as ‘gender identity’ is added to the HRA, no single-sex schools will be able to deny entry to a student of the opposite sex who has a so-called “matching gender identity”.

Currently, an exception under s58 is allowed for schools to exclude students who do not meet the criteria where a school is “maintained wholly or principally for students of one sex, race, or religious belief.” Of course, the LC has recommended the removal of the s58 exclusion pertaining to ‘sex’.

The Commission justifies this proposal by denying that having opposite sex students in a single-sex school makes much difference.

“First, we are not convinced that admitting what is likely to be, at most, a handful of transgender students to a single-sex school would interfere with its general character. Some submitters who did not support this option said parents should be entitled to choose to send their children to a single-sex school and that girls’ schools can adapt to girls’ different needs and experiences. We do not think the amendment we propose will interfere with that except in a minimal way.” [12.57]

As Helen Joyce has said, “A man in women's spaces isn't like a single molecule in a vast body of water, too dilute to be observable – he's like a peanut in a product that's marketed as peanut-free.”

The Commission also cites the Education and Training Act (s191) that already allows opposite-sex students to be enrolled in single-sex state schools. This provision, however, was made so that neighbouring schools could collaborate by providing shared courses and teachers in subjects where student numbers were low, not to accommodate students with a ‘gender identity’.

The LC has decided that,“transgender children and young people are a particularly vulnerable group” [Executive Summary 148] and recommends “maximising” their choice of school - a privilege afforded to no other group of students. Although the proposals are cloaked in human rights language, they undermine human rights principles by establishing a new class of student which has more rights than anyone else.

Even private, religious, single-sex schools would not be exempt from the ban on excluding transgender students. “We consider that a law requiring single-sex schools to admit transgender students in line with their gender identity would be a demonstrably justified limit on the right to manifest religion.” However, “If a school does not consider a particular student shares its religious beliefs, it could refuse to admit the student on that basis.” [12.65]

Absurdly, the Law Commission wants to make it unlawful for schools to discriminate based on the innate characteristic of sex, whilst permitting discrimination on the non-innate grounds of religious belief.

Apart from ‘maximising choice’, the Law Commission did not consider any of the other effects its proposal will have on schools.

RGE’s submission warned the Commission of serious human rights issues if gender identity, an indefinable state of mind, is given priority in schools. We said:

“There are many practical concerns. In Chapter 12, the Issues Paper only discusses enrolment policies and has not considered at all the implications in the daily life of schools if undefinable gender identity takes precedence over sex in law. It is not safe or workable to ask schools to ignore the sex of its students or staff.”

Although some of our safeguarding concerns were quoted in the report [12.23], the LC has not considered the safety of the school community at all, declaring it outside the review’s scope [Foreword].

When ‘gender identity’ has the backing of the HRA, a transgender student can expect free access to facilities and opportunities that were not intended for them. For example (and vice versa), boys will be able to claim discrimination if they are not admitted to girls’ changing rooms, not included in girls’ sports teams, or not considered for the role of head girl. [12.14 & 12.41]

Rather than consider the needs of all students, the Law Commission has given preference to the wishes of the few who believe that a person’s sex is a matter of choice.

#R19 & 20 - No more single-sex public facilities

Currently s43 and s46 of the HRA allow for single-sex facilties to be provided on the grounds of public decency or safety. The LC proposes to allow access to such facilities according to a person’s gender identity.

This recommendation obviously has huge ramifications for women and girls and elicited many submissions raising concerns.

Although the LC acknowledges that “women are more likely to experience sexual violence than men and that sexual violence is usually perpetrated by men” [14.52] it has determined that, “we have not found any evidence that clarifying the legal entitlement of people who are transgender or non-binary to use bathrooms that align with their gender identity will have [the effect of significantly exacerbating safety risks to women.]” [14.60]

Their justification for this conclusion is:

• a lack of evidence of male violence against women in these spaces [14.61]

• no evidence of increased violence where female bathrooms are used by males who identify as women. [14.62]

• any international evidence found occurred before the relevant anti-discrimination protection came into force. [14.63]

• it is already common practice for males with a female ‘gender identity’ to use female facilities. [14.80]

“In summary, we agree that protecting women from violence should be an important policy objective for any government. However, we have been unable to find evidence that safety risks to women are exacerbated by laws that clarify it is permissible for people who are transgender to use facilities that align with their gender identity.” [14.66]

Even when evidence of the negative impact on women of open access to female toilets was provided to the LC, it was discounted as “notable that there are such few claims.” [14.63]. Yet, a single negative experience (of having water spalshed on his crotch) from a transgender person was used to support the LC’s stance. [14.52]

No consideration was given to the fact that a lack of evidence is not proof that there is no evidence - it simply means no-one is officially collecting it. Nor did the LC remember that we do not usually change laws simply because some people flout them.

The Commission thinks the norms about keeping men and women separate when they are unclothed are “currently in a state of transition” and comes close to branding those who want to maintain single-sex spaces as prudes.

While reserving sympathy for transgender people who describe having to use the facilities of their natal sex as, “cruel”, “unfair”, “demeaning” and “invasive and dehumanising” [14.74], none of that sympathy is afforded to women and girls. The Commission simply tells them to get changed in a toilet cubicle if they don’t like having a male in their space.

“While we do not discount the validity of privacy concerns, we think they are outweighed by the harmful effects of exclusion detailed elsewhere in this chapter. We are also mindful of the fact that, within single-sex facilities, people will often have options available to them to manage privacy concerns. For example, while there may be inconvenience involved, people can generally choose to get changed in an individual cubicle or a toilet stall rather than in a communal area.” [14.73]

A woman or girl in a female changing room is expected to move into a toilet cubicle to accommodate the wishes of a man. What could be more unfair, demeaning, and dehumanising than that?

Young girls are the ones who will be worst affected by this change because they will no longer be able to use public facilities, unchaperoned. Giving males with a ‘gender identity’ legal access to female spaces negates their purpose and deprives the next generation of girls of the freedom that their mothers and grandmothers were able to enjoy.

#R12 & 13 - No more routine single-sex accommodation

In the case of sleeping arrangements, the Commission has allowed some flexibility, noting the ‘inherent vulnerability’ of people when they are asleep. [11.125] However, there is no blanket sex exception and it will be up to the providers to prove that single-sex accommodation is required for dignity and welfare. Accommodation on school camps will be affected.

#R23 &24 - No more guaranteed single-sex sports

In another example of outright denial of well-established evidence, the Commission asserts that “There are significant limitations in the evidence that is available regarding the participation of transgender women or women with innate variations of sex characteristics in women’s sports.” [15.76]

The LC professes to be taking a middle ground by not supporting full inclusion in sport by ‘gender identity’, nor full exclusion [15.81] because that “does not account for the potential for hormone treatment to mitigate advantage nor for the fact that only some innate variations of sex characteristics may confer a performance advantage.” [15.82]

Once again, the Commission has prioritised the wishes of transgender people above those of women, who will have to prove disadvantage before they will be granted the equality, dignity, and autonomy that the LC advances for those with a ‘gender identity’.

#R17 - No more same-sex courses and counselling

The Commission understands the purpose of the s45 exception in the HRA which “anticipates that a participant may feel more comfortable with others of the same sex, race, ethnic or national origin, or sexual orientation when discussing highly personal matters in a course or group counselling.” [13.89]

It is inexplicable, then, why it thinks that restricting a course or counselling to a particular gender identity achieves the same purpose.

In schools, this could lead to boys with a female ‘gender identity’ attending a puberty lesson designed for girls, and vice versa. Or a girl survivor of sexual assault receiving counselling from a male who claims to be a woman.

As with the other recommendations, the only explanation for such an overreaching proposal that does not consider the existing rights of women and girls, is ideological capture.

Women’s rights are to be subservient to gender ideology.

There is more (if you have the stamina) … removing gendered language from the HRA, asserting that “most people who give birth are women, but not all”, surmising that misgendering and deadnaming could be censured by the courts…

---

A crisis for the rights of women and girls

Make no mistake, this Law Commission report is disatrous for women. Even if not immediately implemented, Law Commission reports are frequently cited in Parliament, court cases, legal writing, and the news, influencing public discourse and future legal developments.

It was tabled in Parliament on 4 September and the government has 120 days in which to respond. Although this government may reject the recommendations, the report will endure, ready and waiting for a future government to pick it up.

For these reasons, those who want to protect women’s rights, sports, and single-sex schools need to take immediate action:

Write to government ministers who will be in a Cabinet meeting sometime in the next few weeks, determining how to respond to the report. The addresses follow this format: w.peters@ministers.govt.nz; j.collins@ministers.govt.nz; e.stanford@ministers.govt.nz

Ask for official data to be collected of women’s experiences to counter the LC’s false assertion that there is a lack of evidence of harm.

If your child attends (or will attend) a single-sex school, write to the school board expressing your concern that this valued choice for your child is to be taken away.

Talk to others about the LC recommendations - most people will not be aware of the proposals.

Support organisations that oppose these changes.

To allow us to continue our work, please donate to Resist Gender Education via our website www.resistgendereducation.nz.

---

(1) “Many fundamentalist faith based groups, white supremacist groups, and gender essentialist groups tend toward the ideals of fascism, and are often entry points to more extreme fascist circles.” [p7]

(2) WPATH’s president, Dr Marci Bowers, comments on the impact of early blocking of puberty on sexual function in adulthood. “To date,” she writes, “I’m unaware of an individual claiming ability to orgasm when they were blocked at Tanner 2.” Tanner stage 2 is the beginning of puberty. It can be as young as nine in girls.