Promoting and Protecting Human Rights in relation to Sexual Orientation, Gender Identity and Sex Characteristics A Manual for National Human Rights Institutions 3.3.3. Anti-discrimination laws Few countries in the Asia Pacific region explicitly prohibit discrimination on the grounds of gender identity or gender expression. This leaves transgender people vulnerable to exclusion, violence and extortion. In 2012, Tonga agreed to a recommendation of the Human Rights Council’s Universal Periodic Review to “examine the possibility of strengthening measures to eliminate discriminatory treatment” based on gender identity or sexual orientation. In 2013, Fiji introduced the first anti-discrimination protections for transgender people in the Pacific, with gender identity and expression included in the new Constitution.179 In 2013, Australia added gender identity as a prohibited ground of discrimination under its federal law on sex discrimination.180 In September 2015, Thailand passed the Gender Equality Act.181 Section 3 of the Act defines unfair gender discrimination to include discrimination based on a person being ‘of a different appearance from his or her own sex by birth’. While gender identity is not a separate prohibited ground of discrimination in New Zealand, the Human Rights Commission accepts complaints from transgender people under the ground of sex.182 In Mongolia, revisions to Criminal Code in December 2015 specifically include sexual orientation and gender identity as prohibited grounds of discrimination. These provisions come into effect from September 2016. In the Philippines, strong civil society efforts have resulted in a series of local ordinances, starting in Cebu City in 2012, that include gender identity and sexual orientation as prohibited grounds of discrimination. The Philippines Commission on Human Rights has expressed its support for a national anti-discrimination bill to address these issues.183 In the absence of such a law, the Commission has not been able to hold private companies accountable for discrimination against transgender employees or job applicants. In India, anti-discrimination provisions for transgender people have been proposed in both the 2014 Rights of Transgender Persons Bill and in the Government’s December 2015 revised bill. In September 2015, the Nepal’s new Constitution was finalised. Gender and sexual minorities are listed as disadvantaged groups recognised by the Constitution under article 18 that sets out the right to equality.184 This inclusion follows a 2007 Supreme Court ruling that called for anti-discrimination laws. Many countries in this region have no dedicated agency to tackle employment discrimination on the basis of gender identity. In countries with anti-discrimination laws, NHRIs can usefully clarify how these apply to transgender people. For example, as a result of its Transgender Inquiry, the New Zealand Human Rights Commission worked with government officials to produce a 2011 resource for employers and workers on transgender people’s rights at work.185 52 179 Section 26(3)(a) of the 2013 Constitution of the Republic of Fiji. Sexual orientation is also listed as a prohibited ground of discrimination. 180 The Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013 added gender identity, intersex status and sexual orientation as prohibited grounds of discrimination under the Sex Discrimination Act 1984. This was in addition to a range of existing provisions in states and territories prohibiting discrimination based on sexual orientation and gender identity. 181 Gender Equality Act BE 2558 (2015). An informal English language translation is available at www.hrw.org/news/2015/09/21/ thailand-gender-equality-act. 182 This is supported by a 2006 Crown Law opinion. The New Zealand Human Rights Commission’s Transgender Inquiry recommended that the Human Rights Act 1993 should be amended to state clearly that ‘sex’ includes gender identity. 183 UNDP, Report of the Regional Dialogue on LGBTI Human Rights and Health in Asia and the Pacific, 2015. 184 Unofficial translation provided by Blue Diamond Society, Nepal. Article 42 (Social Justice) also lists ‘gender and sexual minorities’ among groups that will have the right to participate in state mechanisms and public services based on the ‘principle of inclusion’. 185 Ministry of Business, Innovation and Employment, Transgender People at Work, 2011; at http://employment.govt.nz/er/ minimumrights/transgender/Transgenderpeople.pdf.