In 1858, the New Zealand Parliament imported most English law. At that time English law prohibited male, but not female, homosexual conduct, even when it was private and consensual adult behaviour.36 Almost 130 years later, the New Zealand government passed Homosexual Law Reform legislation in 1986, decriminalising male homosexuality.37 Sexual orientation was added as a prohibited ground of discrimination in the Human Rights Act of 1993.38 Civil unions for all couples came into effect in 2005,39 followed by marriage equality in 2013.40 In 2017, the government formally apologised to men convicted of historical homosexual offences, recognising the hurt and suffering they experienced as a result, and the continued effects their criminal convictions have had on their lives.41 The human rights status of gender identity and expression Gender expression is included in the definition of gender identity and, as such, all references to gender identity should be understood to be inclusive of gender expression as a ground of discrimination.42 In 2004, MP Georgina Beyer’s member’s bill was drawn from the ballot and introduced to Parliament.43 The Bill intended to specifically include gender identity in the definition of sex in section 21(1)(a) of the Human Rights Act. In 2006, the acting Solicitor-General wrote a 36 37 38 39 40 41 42 43 44 45 46 47 48 49 legal opinion concluding that transgender people were already covered by the Human Rights Act,44 and Beyer withdrew her Bill as it was considered unnecessary. The Commission has interpreted the Act to include gender identity since at least 2005.45 In 2006, the Commission began an inquiry into the discrimination faced by transgender people, publishing the report of the inquiry, To Be Who I Am, in 2008.46 As a direct result, in 2012 the Department of Internal Affairs amended their passport policy allowing holders to select M, F, or X options for their sex through a statutory declaration process, with no requirement for medical evidence.47 In 2013, the New Zealand Transport Agency expanded their options for recording sex on a driver’s licence record to Male, Female, and Indeterminate through a similar process.48 The Universal Periodic Review (UPR) is a mechanism of the United Nations Human Rights Council (HRC).49 It is a process aimed at improving the human rights situation ‘on the ground’ of each of the United Nations (UN) Member States. The human rights record of each UN Member State is peer-reviewed by other Member States in a 5-year cycle, with New Zealand’s most recent review taking place in January 2019. Directly prior to the review, the Minister of Justice stated in his speech to the UN HRC that the government planned to specifically acknowledge gender identity as With the English Laws Act of 1858, New Zealand inherited all laws in force in England on 14 January 1840, including the British legal framework which specifically criminalised sodomy in England’s Offences Against the Person Act 1828. Ministry for Culture and Heritage “Homosexual Law Reform in New Zealand” (14 June 2016) <https://nzhistory.govt.nz/>. Human Rights Act 1993, s 21(1)(m). Sexual orientation in the Act means a heterosexual, homosexual, lesbian, or bisexual orientation. Civil Union Act 2004. Marriage (Definition of Marriage) Amendment Act 2013. This amendment to the principal Act clarified that a marriage is between two people regardless of their sex, sexual orientation, or gender identity. Amy Adams, Minister of Justice “Apology to men convicted of historical homosexual offences and First Reading of the Criminal Records (Expungement of Convictions for Historical Homosexual Offences) Bill” (Wellington, 7 July 2017). The Yogyakarta Principles plus ten: Additional principles and state obligations on the the application of international human rights law in relation to sexual orientation, gender identity, gender expression and sex characteristics to complement the Yogyakarta Principles (Geneva, 2017) at 6. Human Rights (Gender Identity) Amendment Bill 2004 (225-1). The proposed amendment was put forth by Beyer, a Member of Parliament and trans woman, to clarify legal protection for trans people. Cheryl Gwyn “Crown Law opinion on transgender discrimination” (23 August 2006). The opinion by the acting Solicitor-General cited decisions by Canadian, United Kingdom, and European courts, and found that the prohibition of discrimination on the ground of sex in the Human Rights Act includes prohibition of discrimination on the ground of gender identity. New Zealand Human Rights Commission “Does the Human Rights Act 1993 prohibit discrimination based on gender dysphoria or transsexualism?” (Unpublished manuscript, 2005). New Zealand Human Rights Commission To Be Who I Am: Report of the Inquiry into Discrimination Experienced by Transgender People (Wellington, 2008). Department of Internal Affairs “Information about changing sex / gender identity” (2019) <https://www.passports.govt.nz/>. New Zealand Transport Agency “Updating your licence” (undated) <https://www.nzta.govt.nz/>. Office of the High Commission for Human Rights “Universal Periodic Review” <www.ohchr.org> 13