PRISM: Human Rights issues relating to Sexual Orientation, Gender Identity and Expression, and Sex Characteristics (SOGIESC) in Aotearoa New Zealand - A report with recommendations a prohibited ground of discrimination in law.50 Until 2019, New Zealand had never received any recommendations related to SOGIESC during a UPR cycle.51 The human rights status of sex characteristics There is no explicit protection from discrimination for people with variations of sex characteristics in New Zealand legislation. This gap has been noted by the Commission and the Intersex Trust of Aotearoa New Zealand (ITANZ) in submissions to the United Nations Committee on the Rights of the Child in 2015,52 the Committee Against Torture in 2017,53 and the Working Group of the Universal Periodic Review in 2019.54 As a result of this collaborative work, New Zealand received four intersex-specific recommendations from the Committee on the Rights of the Child in 2016.55 There is also no law prohibiting surgical (cosmetic) interventions not necessary for the preservation of life on people with variations of sex characteristics. In 2017, the United Nations Committee Against Torture requested the New Zealand government comment on reports of surgery and other medical treatment to which intersex children were subjected, and provide the number of intersex children who had undergone surgery, from 2015 to 2019.56 The government 50 51 52 53 54 55 56 57 58 59 60 14 responded in September 2019 stating seven intersex people underwent surgery in the reporting period.57 The Human Rights Act 1993 Section 21 of the Human Rights Act 1993 (the Act) recognises thirteen prohibited grounds of discrimination, including sex and sexual orientation.58 ‘Sexual orientation’ is defined under s 21(1)(m) of the Act to mean a “heterosexual, homosexual, lesbian, or bisexual orientation.” ‘Sex’ under s 21(1)(a) simply states that the term “includes pregnancy and childbirth”. Although yet to be determined by the New Zealand Courts, the Commission interprets sex under s 21(1)(a) of the Act to include gender identity, gender expression, and sex characteristics; accepting complaints of discrimination on this basis.59 While the Commission has interpreted the Human Rights Act to include discrimination on the basis of gender identity under the ground of sex discrimination since at least 2005,60 trans people have made it clear that they do not feel protected by the Commission’s position. Amending s21(1)(a) of the Act to also include gender identity, gender expression, and sex characteristics under the ground of sex was raised at every public hui the Andrew Little, Minister of Justice. “Speech to United Nations Human Rights Council for the third Universal Periodic Review” (Geneva, Switzerland, 21 January 2019). Murphy “NZ told to improve human rights of LGBTQI people” Radio New Zealand (22 January 2019). Intersex Trust Aotearoa New Zealand Submission from the Intersex Trust of Aotearoa New Zealand (ITANZ) to the Committee on the Rights of the Child (Unpublished submission, 2015). See also New Zealand Human Rights Commission New Zealand’s 5th periodic review under the United Nations Convention on the Rights of the Child: Supplementary submission of the New Zealand Human Rights Commission to the Committee on the Rights of the Child’s 73rd Session (2016); however, note that the Commission’s submission states incorrectly at [41] that discrimination is prohibited on the basis of sex characteristics under the Human Rights Act 1993. Intersex Trust Aotearoa New Zealand Submission from the Intersex Trust of Aotearoa New Zealand (ITANZ) to the Committee Against Torture (2017). Intersex Trust Aotearoa New Zealand Submission to the Universal Periodic Review (2018) at 4. See also New Zealand Human Rights Commission New Zealand’s Third Universal Periodic Review: Submission of the New Zealand Human Rights Commission at [45]. Committee on the Rights of the Child Concluding observations on the fifth periodic report of New Zealand UN Doc CRC/C/NZL/CO/5 (21 October 2016) at [25(b)]-[25(e)]. Committee Against Torture List of issues prior to submission of the seventh periodic report of New Zealand UN Doc CAT/C/NZL/QPR/7 (9 June 2017) at [32]. Committee Against Torture Seventh periodic report submitted by New Zealand under article 19 of the Convention pursuant to the optional reporting procedure, due in 2019 (25 September 2019) at [32]. The thirteen protected characteristics include sex, marital status, religious belief, ethical belief, colour, race, ethnic or national origins, disability, age, political opinion, employment status, family status, and sexual orientation. These characteristics are protected in areas of public life including government activity; education; employment and pre-employment; provision of goods and services; and land, housing, and accommodation. New Zealand Human Rights Commission “Making a complaint: Information for transgender complainants” (video, 4 March 2019). New Zealand Human Rights Commission “Does the Human Rights Act 1993 prohibit discrimination based on gender dysphoria or transsexualism?” (Unpublished manuscript, 2005).