PRISM: Human Rights issues relating to Sexual Orientation, Gender Identity and Expression, and Sex Characteristics (SOGIESC) in Aotearoa New Zealand - A report with recommendations The first article of the Universal Declaration of Human Rights stipulates that “[a]ll human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.” This basic assumption of equality and dignity of all human beings is at the heart of all human rights and provides the foundation for the right to freedom from discrimination. Anchored in Article 2 of the Universal Declaration of Human Rights, the prohibition of discrimination on the basis of ‘other status’ in international human rights law is properly considered to include sexual orientation, gender identity and expression, and sex characteristics.31 Even though such protections are guaranteed under international law, SOGIESC-diverse people often have little access to justice through remedy and redress. Violence and discrimination can be the result of exclusionary laws and policies.32 The terms used to define identity in legislation are crucial in determining the extent to which universal human rights are recognised and given protection under the law.33 The rights to equality and non-discrimination for SOGIESC-diverse people are explicitly mentioned and emphasised in Yogyakarta Principle 2.34 The Principle explains that “discrimination on the basis of sexual orientation or gender identity includes any distinction, exclusion, restriction or preference… which has the purpose or effect of nullifying or impairing equality before the law… or the recognition, enjoyment or exercise, on an equal basis, of all human rights and fundamental freedoms.” The Principle stipulates that States should ensure that the human rights concepts of equality and non-discrimination are reflected in their national ARTICLE 2 UNIVERSAL DECLARATION OF HUMAN RIGHTS Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status… constitutions or other appropriate legislation. It also affirms that States shall adopt legislation and other measures in order to prohibit and eliminate discrimination against people with a diverse sexual orientation, gender identity and expression, and sex characteristics in the public and private spheres. The human rights status of sexual orientation Prior to the European colonisation of Aotearoa, homosexuality was accepted as a normal and natural part of Māori society.35 The entrenchment of Western Christian social values and structures would go on to have serious consequences for people with a diverse sexual orientation (and gender identity, gender expression, and sex characteristics) in Aotearoa and across the Pacific. Asia Pacific Forum and the United Nations Development Programme Promoting and Protecting Human Rights in relation to Sexual Orientation, Gender Identity and Sex Characteristics: A Manual for National Human Rights Institutions (Sydney, Australia, 2016) at 130. 32 Victor Madrigal-Borloz Report to the General Assembly by the Independent Expert on protection against violence and discrimination based on sexual orientation and gender identity UN Doc A/72/172 (12 July 2018) at [33]. 33 Victor Madrigal-Borloz Report to the General Assembly by the Independent Expert on protection against violence and discrimination based on sexual orientation and gender identity UN Doc A/72/172 (12 July 2018) at [4]. 34 The Yogyakarta Principles: Principles on the application of international human rights law in relation to sexual orientation and gender identity (Geneva, 2007). 35 Elizabeth Kerekere “Part of the Whānau: The Emergence of Takatāpui Identity – He Whāriki Takatāpui” (PhD Thesis, Victoria University of Wellington, 2017). 31 12