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In the lead up to the passing of the Homosexual Law Reform Act in 1986, it was common to hear the argument that decriminalising gay sex would be the beginning of a slippery slope that would lead to those people demanding marriage—the pinnacle of heterosexuality! In the campaign for marriage equality, it became evident that many queer people also viewed marriage as the ultimate goal for law reform. In almost three years since the passing of the marriage equality legislation, no other queer issue has managed to garner as much support from the general public or from queer people. We can get married now, what else could we possibly want?
Actually, quite a lot. Our legal system is not working for—and is actively discriminating against—some of the most vulnerable members of our queer community. Trans people are routinely discriminated against; especially trans women, who face the dangerous intersection of misogyny and transphobia. The Human Rights Act 1993, which protects us from discrimination on the basis of sex, sexual orientation, and many other factors, fails to include gender identity or gender expression. Family First highlighted this issue earlier this year, when they wrote to all New Zealand schools informing them that they don’t legally have to allow trans students access to their bathroom of choice or provide gender neutral bathrooms.
People who don’t identify with the gender they were assigned at birth face particular difficulties in getting official recognition of their gender. Although gender markers on drivers’ licences and passports can be changed by statutory declaration, these forms of ID are expensive and significant paperwork is involved in changing them. Birth certificates are the only form of ID that many people have, and they are often critical for situations where multiple forms of ID are required, such as when dealing with WINZ. Changing the sex marker on birth certificate requires going to court, which involves significant cost and a medical standard of permanent physical change, often meaning surgery—which is extremely inaccessible in New Zealand and often not desired by trans people.
Trans people who have been unable to change their birth certificates are also placed in the wrong prisons. This is especially dangerous for trans women incarcerated in men’s prisons, where they are highly vulnerable to rape and other violence from both fellow prisoners and prison guards (see statements from activist group No Pride in Prisons). This is exacerbated by prison overcrowding and the Department of Corrections’ (DoC) policy of “double-bunking”—locking two or more prisoners in the same cell overnight—which has been shown to increase levels of prison violence.
The flowchart DoC uses to assist its staff in determining the placement of trans prisoners has been described by Natasha Frost of RNZ as “eye-wateringly complex.” No Pride in Prisons have also documented alarming cases of applications for transfer by trans prisoners which have been “lost” or ignored by prison staff.
Queer people in New Zealand are also more vulnerable to violent crime. A number of gay men have been violently murdered. Prior to 2009, provocation was a partial defence to a murder charge – that is, when approached with amorous intent by a queer individual, it was a legitimate defence to claim a ‘fear’ of homosexuals to justify a murderous reaction. With the abolition of provocation in 2009, “gay panic” or “trans panic” are no longer grounds for a defence. In fact we have a form of hate crime legislation in the Crimes Act’s list of aggravating features of offending, which includes attacking someone because of their sexual orientation or gender identity. Application of this provision leads to a harsher sentence. However, despite the number of queer-bashings that have occurred—such as the recent murder of Ihaia Gillman-Harris in Auckland, this section has never been applied in any reported case.
New Zealand law also permits unnecessary and non-consensual genital surgeries on intersex infants. Intersex Trust Aotearoa New Zealand (ITANZ) defines intersex as conditions “where the sexual anatomy or the chromosomes are not the standard male or female.” The Human Rights Commission has confirmed that most infants of “indeterminate sex” in New Zealand are assigned a sex by “gender normalising” surgery, where medical interventions are used to make genitals conform more closely to binary male/female norms. This surgery is under-regulated. The provisions against female genital mutilation in the Crimes Act 1961 criminalise surgery on female genitalia except where medically necessary. No similar provision applies to other kinds of genitals. Because these surgeries are being done on babies, informed consent from the person involved is impossible. ITANZ argues that wherever possible such interventions should be avoided until the child is old enough to consent for themselves, and that much of what is deemed ‘medically-necessary’ is not based on biological functions, but rather on stereotypes regarding what genitals should look like and binary notions of sex. The law provides no guidance as to this point, and parents who consent to such procedures for their babies are often scared and ill-informed.
These are just a few of the many ongoing legal issues facing queer people in New Zealand today. Marriage is not the end of the law reform fight. While it may represent the end of obvious discrimination against many of us personally, we can’t afford to forget the injustices faced by so many of our queer siblings.