What the “man” and “woman” bill really means
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The member’s bill seeking to legally define “woman” and “man” excludes trans, intersex, and takatāpui whānau, and potentially has unintended consequences, such as restricting access to abortion to under-20s.
The Legislation (Definitions of Woman and Man) Amendment Bill, passed its first reading in Parliament on Wednesday and will now go through the select committee process. The bill would define "woman" in law as "an adult human biological female", and "man" as "an adult human biological male".
The bill is being touted as protecting women’s rights. But, as Chief Executive Jackie Edmond explains, the worry is that the reality is starkly different. “Our fear is that rather than solving a problem, it creates many more – restricting the rights of women and our trans and intersex whānau.”
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The proposed legislation is a direct take from the American Conservative playbook. We’re seeing globally, this incremental creep of tampering with laws to reduce rights. Despite the stated intentions of this bill, it seems it could have a negative impact on rights for women, trans and intersex people. “And we’re really worried about the consequences this legislation could have, such as limiting access to abortion.”
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Why is this bill concerning?
It raises significant Bill of Rights concerns
Attorney General Chris Bishop says the bill raises significant Bill of Rights concerns. He noted that the proposed biological definitions could breach the right to be free from discrimination as they conflict with broader legal protections currently provided to transgender and non-binary people under the Human Rights Act.
It falls short of the Government’s human rights obligations
Te Kāhui Tangata Human Rights Commission says the bill falls short of the Government’s human rights obligations, and risks harm to communities who continue to experience discrimination on the basis of their gender identity.
The NZ Bill of Rights Act 1990 and the Human Rights Act 1993 protect people in Aotearoa New Zealand, including transgender, non-binary and intersex people, against unlawful discrimination. The Human Rights Commission has long interpreted the prohibited ground of sex discrimination as being inclusive of gender identity, accepting complaints of discrimination from transgender people on this basis.
Equal Employment Opportunities Commissioner and Women’s Rights spokesperson Professor Gail Pachecho says, “there’s no need to define ‘man’ and ‘woman’ in the law because the law already works well using the usual meaning of those words. Adding strict definitions can create confusion, leave people out, and cause problems without actually changing how the law works.”
It discriminates against trans, non-binary, and intersex people
With the bill defining “woman” as "an adult human biological female", and "man" as "an adult human biological male", anyone that falls outside of this binary definition would be excluded.
This would affect how trans, non-binary, takatāpui, and intersex people are viewed in the eyes of the law, potentially restricting rights and access to healthcare and services. One key example is cervical screening. If this bill were to become legislation, could a trans man with a cervix access cervical screening, without having to expose themselves to gender or sex-based discrimination?
It restricts access to abortion – and potentially other services
The bill defines “woman” as “adult”. And according to the Age of Majority Act 1970, if “adult” isn’t defined, it’s considered someone who’s aged 20 or older.
This means under-20s may be excluded from any legislation that mentions “women” or “men” without mentioning age. One particularly worrying example of this is abortion.
The Contraception, Sterilisation and Abortion Act outlines how women can access abortion services. If the proposed bill passes, this could mean that women under 20, trans, and intersex people may not be able to have an abortion.
Not only could this be problematic for people accessing a service to which they’re entitled, it could also provide an opening for anti-choice groups to put abortion back up for debate.
The Attorney General’s report on the bill suggests other possible restrictions including women under 20 no longer being eligible to apply to the court for a declaration of paternity, and a partner or spouse of a woman under the age of 20 being unable to take parental leave because law requires a certificate certifying that a woman is pregnant.
The definitions are problematic
It’s also worth considering how “biological adult female” and “biological adult male” could practically be defined. What does this mean exactly? Does it relate to chromosomes, hormones, internal, or external anatomy? What about people that don’t fit into these neat boxes?
This is the tip of the iceberg
The potential consequences outlined here are the tip of the iceberg. Because the bill’s proposed definitions would apply to every piece of secondary legislation, it would be “a difficult all-of-government task to determine any consequential problems created by the new definitions.”
There’s no legal need
As explained on Law News, there is a “lack of demonstrated legal need for the bill”, yet it risks causing significant harm to trans communities and others. This speaks instead to political motivations behind the bill. Indeed, the “treating of transgender persons and other vulnerable groups as an object of political debate is a concerning trend, which this Bill seems to follow”.
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Have your say
The Social Services and Community Committee is calling for submissions on the Legislation (Definitions of Woman and Man) Amendment Bill.