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July 24, 2017 | by  | in Opinion |
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The Human Rights Act doesn’t include all people

To whomever doesn’t think it’s a concern (even though it actually is),

In New Zealand, under the Human Rights Act 1993, it is illegal to discriminate against an individual on the grounds of “sexual orientation, which means a heterosexual, homosexual, lesbian, or bisexual orientation (s 21(1)(m)). In 1993 when the Act was enacted, diverse sexualities, in terms of sexual and romantic relationships between two people, were comparatively uncommon and socially taboo. Since the arrival of the 21st century, however, NZ has seen relationship terms and “sexual” orientations become more socially discussed. It’s ridiculous to believe the specific and limited definition of diverse sexual orientations stated in the Human Rights Act accurately represents NZ today, which poses problems for many New Zealanders. To restrict protections against discrimination to the four defined sexual orientations means that discrimination is still legal against people that do not identify as either heterosexual, homosexual, lesbian, or bisexual.

Sexual orientation is defined by which “gender” one is sexually attracted to. While the Act doesn’t address gender comprehensively, it is capable of acknowledging discrimination against trans people on the basis of sex.¹ I understand that cis-white heterosexuals in Parliament are going to be reluctant to address the issue of including genderless people in the Act, but for the issue of discrimination on the basis of sexual orientation, I believe they can easily wrap their queerphobic heads around this to get the ball rolling. According to a YouGov survey, 7% of people in the UK do not identify as a man or as a woman, which can include intersex people as well those who do not identify with a binary gender.² If the same statistics applied to NZ, we would have over 300,000 non-gendered people. Because a non-gendered person is not technically male or female, the law can be interpreted as preventing them from being recognised as heterosexual, homosexual, lesbian, or bisexual, thus not protecting them against discrimination. By limiting the definition to four binary-gendered orientations, the NZHRA limits its own usefulness to nonbinary or agendered people (including binary-gendered people who are attracted to genderless people).

There is a distinct difference between sexual and romantic orientation. The definitions in the Act also do not consider this, which means that many people can still be legally discriminated against! People wishing to be only in a romantic relationship (as opposed to a sexual or sexual-romantic relationship) do exist! Woah! Yes! It’s a thing! And there are so many people in NZ who identify this way. This same argument can be applied to asexual or aromantic people, of whom there are many in our community.

An asexual person or nonbinary person could legally be denied entrance to a school or university based on their “sexual orientation”, simply because the language in the Act allows for it. Addressing this requires asking how we define what our sexual orientation is in less gendered terms. It could be argued that people of diverse sexualities who are experiencing discrimination could just claim to identify as one of the four defined sexual orientations in the Human Rights Act to defend themselves. However, the problem of integrity and the usefulness of the Act then comes into question.

Hypothetically, a pansexual person may be discriminated against in the workplace, and it’s suggested that they pretend they are bisexual to take legal action against the offender. However, if the Act did not exist, and it was illegal to identify as any non-heterosexual orientations, the person experiencing the discrimination could simply pretend they are heterosexual to avoid discrimination. With this in mind, what is the point of having the section at all? Recognising diverse sexual and romantic orientations in NZ as grounds for prohibiting discrimination is vital for NZ citizens in achieving full equality for all. It’s 2017 why has this stuff not been addressed yet!?

I will also note that in the recently passed Marriage (Definition of Marriage) Amendment Act 2013, broader definitions of gender identity, and sexual orientation are included: “marriage means the union of two people, regardless of their sex, sexual orientation, or gender identity.” The fact that the Human Rights Act has not been amended to reflect and match the views of this modern legislation is pretty pathetic.

Sexuality can be one of the most fundamental components of a person’s identity. NZ prides itself on its liberal and progressive nature, but still represses a huge part of its citizens’ everyday life. Freedom from discrimination is a fundamental issue for people in our community, and the fact that it is so intensely limited is really, really sad. I think it’s about time we saw some change, starting with our basic human rights!


  1. s 21(1)(a). Although, this is problematic too; the terminology of this section is clearly not directed towards trans people: “sex, which includes pregnancy and childbirth.”
  2. NonBinary Gender Factsheet.”
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