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This is not legal advice, which can only be given by an attorney admitted to practice law in your jurisdiction after hearing all of the facts and circumstances in a particular case.

Wednesday, August 23, 2006

New Zealand Human Rights Act includes gender identity

The New Zealand Solicitor-General, the government's chief legal advisor, has issued a legal opinion stating that the country's Human Rights Act, which prohibits discrimination based on sex, includes discrimination against transgender people. I find it interesting that the NZ Solicitor General has adopted the same position as a number of federal courts around the U.S. that have interpreted the reference to "sex" discrimination in the Civil Rights Act of 1964 as including transgender employees.

While New Zealand has prohibited discrimination on the basis of sexual orientation since 1993, this point has long been in dispute in New Zealand. Labour MP (Member of Parliament) Georgina Beyer, who is transgender herself, had introduced a bill in Parliament to address the issue. Her Human Rights (Gender Identity) Amendment would have amended the Act to include "gender identity," but she has said she will withdraw the bill since the law has been clarified by the Solicitor-General's opinion.

There have been some allegations in the New Zealand press that she was pressured to withdraw the bill by opponents of the bill in her party, who were afraid of controversy that would harm the party in the polls. MP Beyer, however, said that she did not withdraw the bill because of pressure, and that there was little controversy in the Parliament, where there were more than enough votes to pass the bill. She said that her withdrawal of the bill was "finesse."

Her explanation makes a great deal of sense to me. Trying to get a bill passed that would certainly generate controversy, whether or not one accepts her claim that there are more than enough votes to pass it, when she already has in hand a legal opinion that will be, at the least, very persuasive under New Zealand law, would be putting politics over people.

At the same time, however, I would imagine that the opinion is not set in stone and could be changed if the political waters change. From the little I understand about New Zealand law, the Solicitor General is the government's executive branch advisor on legal matters, a non-political officer who is subject to the authority of the more political Attorney General. The relationship between the Solicitor General and the judiciary is closer than it is in the U.S., so it's unclear to me whether a judge would feel it necessary to follow that opinion. I don't get the impression that the Solicitor General's opinion is binding on the courts, though I would imagine it is most persuasive.

Bottom line: Ms. Beyer's a politician who knows how to work the system to get real results for transgender people, without getting hung up on "rights talk" and insistence on political unreality. It's too bad she's stepping down from her post.

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