LGBTIQ rights – the New Zealand legal framework

The Human Rights Act, 1993 outlaws discrimination in Section 21 of the Act
citing 13 grounds including on the grounds of sexuality. The prohibited grounds of
discrimination are:

a.  sex
b.  marital status
c.  religious belief
d.  ethical belief
e.  colour
f.  race
g.  ethnic or national origins
h.  disability
i.  age
j.  political opinion
k.  employment status
l.  family status
m. sexual orientation

LGBTIQ groups have urged that “gender identity” be added to the prohibited  grounds of discrimination specified in Section 21 to include transgender and intersex people’s rights. The Human Rights Commission said in 2005 that it considered that transgender people’s right to be free from discrimination to fall  within the definition of sex discrimination. The New Zealand Solicitor General has issued an opinion to the effect that transgender people are covered under the ‘sex discrimination’ provision of the Human Rights Act 1993.

In the Human Rights Commission publication, To Be Who I Am, a report from the Human Rights Commission’s Transgender Inquiry, clarification of the Human Rights Act in terms of gender identity is recommended, by specifically including “gender identity” under the sex category in the Human Rights Act.

The Bill of Rights Act, 1990 sets out to:

  1. affirm, protect, and promote human rights and fundamental freedoms in New Zealand; and
  2. affirm New Zealand’s commitment to the International Covenant on Civil and Political Rights (ICCPR).

The Bill of Rights Act restrains the government’s ability to limit an individual’s rights and acts as a “constitutional check” on the power of the Executive Branch of Government and Parliament. When the Bill of Rights was passed it was hoped that this Act would improve New Zealand’s system of government and provide a safeguard for those fundamental rights and freedoms “vital to the survival of New Zealand’s democratic and multicultural society” and provide a set of minimum standards to which public decision making must conform.

The New Zealand Bill of Rights Act 1990 places limits on the actions of those in government (including government departments, the judiciary, state-owned enterprises and local authorities) that interfere with the rights of individuals. All new legislation is examined to see if it is consistent with the rights and freedoms affirmed by the Bill of Rights Act. If there are any inconsistencies, then the government is required to provide a justification for the limits placed on these rights. The Attorney General must report any inconsistencies with the Bill of Rights Act to Parliament when the legislation is introduced.

Section 19(1) of the New Zealand Bill of Rights Act enjoins freedom from discrimination on the grounds of discrimination in the Human Rights Act 1993. The

Employment Relations Act, 2000 outlines certain requirements regarding discrimination and links to other Acts. Sections 103, 104 and 105 of the Employment Relations Act 2000 are relevant to LGBTIQ issues and complaints of discrimination.

Section 103:
Section 103 (1) (c) outlines that a personal grievance may be taken because of a
claim:
“that the employee has been discriminated against in the employee’s employment;

Section 104:
Identifies the test for discrimination:

For the purposes of Section 103 (1) (c), an employee is discriminated against in
that employee’s employment if the employee’s employer or a representative of
that employer, by reason directly or indirectly of any of the prohibited grounds of
discrimination specified in section 105.

Section 105:
Identifies the prohibited the 13 grounds of discrimination referred to in Section 104
of the Employment Relations Act as set out in Section 21 (1) of the Human Rights
Act 1993.

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