Intersex rights in New Zealand

Intersex rights in New Zealand are protections and rights afforded to intersex people. Protection from discrimination is implied by the Human Rights Act and the Bill of Rights Act, but remains untested. The New Zealand Human Rights Commission states that there has seemingly been a "lack of political will to address issues involved in current practices of genital normalisation on intersex children".^[1]

Intersex rights in New Zealand
New Zealand
Protection of physical integrity and bodily autonomy	No
Protection from discrimination	Not tested
Access to identification documents	Yes
Access to same rights as other men and women	No
Changing M/F sex classifications	Yes
Third gender or sex classifications	Yes
Marriage	Yes
Rights by country Argentina Australia Canada Chile China Colombia France Germany Kenya Malta Mexico Nepal New Zealand South Africa Spain Switzerland Taiwan Uganda United Kingdom United States

In March 2017, New Zealand and Australian community organizations issued a joint call for legal reform, including the criminalization of deferrable intersex medical interventions on children, an end to legal classification of sex, and improved access to peer support.^[2]

History

Further information: Intersex in history

Early common law, like canon law,^[3] held that hermaphrodites were to be treated as male or female depending on the prevailing sex.^[4][5]

In the early part of the 21st-century, the Human Rights Commission studied the circumstances of intersex people within the context of studies on the human rights situation of transgender people.^[6] Later work has examined the situation of intersex people separately, including the human rights implications of intersex medical interventions, shame and secrecy.^[7][1]

Notable civil society institutions and individuals include the Intersex Trust Aotearoa New Zealand, Mani Mitchell and refugee Eliana Rubashkyn. Mitchell narrated the documentary Intersexion in 2012.

In March 2017, representatives of Intersex Trust Aotearoa New Zealand participated in an Australian and Aotearoa/New Zealand consensus "Darlington Statement" by intersex community organizations and others.^[2] The statement calls for legal reform, including the criminalization of deferrable intersex medical interventions on children, an end to legal classification of sex, and improved access to peer support.^{[2][8][9][10][11]}

Physical integrity and bodily autonomy

 

  Legal prohibition of non-consensual medical interventions

  Regulatory suspension of non-consensual medical interventions

Further information: Intersex human rights and Intersex medical interventions

In 2010 and 2016, the Human Rights Commission heard testimony from intersex people and from medical professionals, including information on medical interventions within New Zealand and in Australia, under the provisions of a High Cost Treatment Pool.^[7]

The Asia Pacific Forum of National Human Rights Institutions states that New Zealand laws and policies that prohibit female genital mutilation explicitly permit "normalizing" medical interventions on intersex infants and girls.^[12] Material presented by the Australasian Paediatric Endocrine Group to the Australian Senate in 2013 showed New Zealand to be a regional outlier in surgeries in cases of congenital adrenal hyperplasia, with genital surgical interventions favoured on infant girls aged less than six months.^[13]

In a 2016 review of the country's performance under the Convention on the Rights of the Child, the government provided conflicting information on medical interventions,^[14] including information that contradicts reports made to the Human Rights Commission.^[7] In October 2016, the UN Committee on the Rights of the Child issued observations on practices in New Zealand, including recommendations to ensure "that no one is subjected to unnecessary medical or surgical treatment during infancy or childhood, guaranteeing the rights of children to bodily integrity, autonomy and self-determination".^[1]

A 2016 Intersex Roundtable by the Human Rights Commission on genital "normalizing" surgeries found that there was a lack of political will to address surgeries,^[1] concerns with service delivery to parents and families, the development of legislative safeguards, and a need to test the right to bodily autonomy against the Bill of Rights Act.^[15]

In March 2017, an Australian and Aotearoa/New Zealand community statement called for acknowledgement, an apology, and compensation for intersex people who have been subjected to "involuntary or coercive medical interventions".^[2]

In July 2018, the UN Committee on the Elimination of Discrimination against Women issued concluding observations on harmful practices, recommending that New Zealand adopt "clear legislative provisions explicitly prohibiting the performance of unnecessary surgical or other medical treatment on intersex children before they reach the legal age of consent". The Committee also called for the provision of redress, and counselling and support to families.^[16]

Protection from discrimination

 

  Explicit protection from discrimination on grounds of sex characteristics

  Explicit protection on grounds of intersex status

  Explicit protection on grounds of intersex within attribute of sex

Main article: Discrimination against intersex people

The New Zealand Human Rights Commission noted in its 2004 report on the status of human rights in New Zealand that intersex people in New Zealand face discrimination in several aspects of their lives, however the law is unclear on the legal status of discrimination based on sex characteristics or intersex status.^[17] Currently, the Commission believes that the Human Rights Act 1993 may protect intersex persons under the laws preventing discrimination on the basis of sex, and the Bill of Rights Act 1990 may adequately recognize rights to bodily autonomy and refusal of medical treatment, but this has not been tested.^[1]

Identification documents

Main article: Legal recognition of intersex people

New Zealand passports are available with 'M', 'F' and 'X' sex descriptors for applicants of indeterminate sex.^[18] Passports with an 'X' descriptor were originally introduced for people transitioning gender.^[19] Birth certificates are available at birth showing "indeterminate" sex if it is not possible to assign a sex.^[20]

In March 2017, an Australian and Aotearoa/New Zealand community statement called for an end to legal classification of sex, stating that legal third classifications, like binary classifications, were based on structural violence and failed to respect diversity and a "right to self-determination".^[2][8]

Marriage

Further information: Same-sex marriage in New Zealand

Any adult couple is able to marry in New Zealand. A private member's bill by Labour MP Louisa Wall which proposed defining marriage to be inclusive regardless of gender became law on 19 April 2013. The first same-sex marriages were conducted in August 2013.^[21]

See also

• Intersex Trust Aotearoa New Zealand
• Intersex human rights
• LGBT rights in New Zealand
• Transgender rights in New Zealand
• Disability rights in New Zealand
• Human rights in New Zealand

References

1. Human Rights Commission (2016), Intersex Roundtable Report 2016 The practice of genital normalisation on intersex children in Aotearoa New Zealand (PDF), (PDF) from the original on 15 April 2017
2. Androgen Insensitivity Support Syndrome Support Group Australia; Intersex Trust Aotearoa New Zealand; Organisation Intersex International Australia; Black, Eve; Bond, Kylie; Briffa, Tony; Carpenter, Morgan; Cody, Candice; David, Alex; Driver, Betsy; Hannaford, Carolyn; Harlow, Eileen; Hart, Bonnie; Hart, Phoebe; Leckey, Delia; Lum, Steph; Mitchell, Mani Bruce; Nyhuis, Elise; O'Callaghan, Bronwyn; Perrin, Sandra; Smith, Cody; Williams, Trace; Yang, Imogen; Yovanovic, Georgie (March 2017), , archived from the original on 22 March 2017, retrieved 21 March 2017
3. Raming, Ida; Macy, Gary; Bernard J, Cook (2004). A History of Women and Ordination. Scarecrow Press. p. 113.
4. Greenberg, Julie (1999). "Defining Male and Female: Intersexuality and the Collision Between Law and Biology". Arizona Law Review. 41: 277–278. SSRN 896307.
5. E Coke, The First Part of the Institutes of the Laws of England, Institutes 8.a. (1st Am. Ed. 1812).
6. Human Rights Commission (25 January 2010). "Intersex sections from the Transgender Inquiry's final report". from the original on 14 April 2017.
7. Human Rights Commission (July 2010). "February 2010 Auckland Intersex Roundtable". from the original on 17 April 2017.
8. Copland, Simon (20 March 2017). "Intersex people have called for action. It's time to listen". Special Broadcasting Service. from the original on 22 March 2017. Retrieved 21 March 2017.
9. Jones, Jess (10 March 2017). "Intersex activists in Australia and New Zealand publish statement of priorities". Star Observer. from the original on 22 March 2017. Retrieved 21 March 2017.
10. Power, Shannon (13 March 2017). "Intersex advocates pull no punches in historic statement". Gay Star News. from the original on 22 March 2017. Retrieved 21 March 2017.
11. Sainty, Lane (13 March 2017). "These Groups Want Unnecessary Surgery On Intersex Infants To Be Made A Crime". BuzzFeed Australia. from the original on 22 March 2017. Retrieved 21 March 2017.
12. Asia Pacific Forum of National Human Rights Institutions (June 2016). Promoting and Protecting Human Rights in relation to Sexual Orientation, Gender Identity and Sex Characteristics. Asia Pacific Forum of National Human Rights Institutions. ISBN 978-0-9942513-7-4. from the original on 15 January 2017.
13. . Organisation Intersex International Australia. 4 November 2013. Archived from the original on 9 March 2015. Retrieved 31 December 2014.
14. New Zealand Government (20 September 2016), New Zealand Government response to questions from the United Nations Committee on the Rights of the Child (PDF), (PDF) from the original on 11 February 2017
15. United Nations; Committee on the Rights of Child (7 October 2016). "Concluding observations on the fifth periodic report of New Zealand" (PDF). Geneva: United Nations. (PDF) from the original on 29 March 2017.
16. Committee on the Elimination of Discrimination against Women (July 2018), Concluding observations on the eighth periodic report of New Zealand
17. Human Rights Commission (August 2004), Human Rights in New Zealand Today – New Zealand Action Plan for Human Rights'
18. "New Zealand Passports – Information about Changing Sex / Gender Identity". from the original on 23 September 2014. Retrieved 6 October 2014.
19. "Jaimie Veale – Academia.edu, "The prevalence of transsexualism among New Zealand passport holders, passports with an X sex descriptor are now available in New Zealand", 2008". from the original on 30 October 2014. Retrieved 6 October 2014.
20. Department of Internal Affairs. (PDF). Archived from the original (PDF) on 30 April 2017. Retrieved 2 February 2017.
21. "Marriage (Definition of Marriage) Amendment Bill – First Reading". Hansard Office, New Zealand Parliament. 29 August 2012. from the original on 3 September 2012. Retrieved 31 August 2012.

Bibliography

• Asia Pacific Forum of National Human Rights Institutions (June 2016). Promoting and Protecting Human Rights in relation to Sexual Orientation, Gender Identity and Sex Characteristics. ISBN 978-0-9942513-7-4.
• Human Rights Commission (August 2004), Human Rights in New Zealand Today – New Zealand Action Plan for Human Rights'
• Human Rights Commission (25 January 2010). "Intersex sections from the Transgender Inquiry's final report".
• Human Rights Commission (July 2010). "February 2010 Auckland Intersex Roundtable".
• Human Rights Commission (2016), Intersex Roundtable Report 2016 The practice of genital normalisation on intersex children in Aotearoa New Zealand (PDF)