Submission on the Mental Health Bill 87

Tēnā koutou

The Women’s Rights Party of Aotearoa New Zealand welcomes the opportunity to provide feedback on the Mental Health Bill (2024) which is intended to repeal and replace the current Mental Health (Compulsory Assessment and Treatment) Act 1992.

We appreciate the extension of time for the closing date of submissions.

The Women’s Rights Party is a registered political party focused on issues that directly impact women, girls, and children. Our primary concern is protecting the rights of women and children. It is in this context that we make the following comments on the Bill before the Health Select Committee.

1. We support the intention of the bill to create an approach based on rights and recovery, which enables responsive, needs-based care, supports the safety of the patient and others, supports the patient’s decision making capacity, minimises the use and duration of compulsory care, and provides effective safeguards to ensure that human rights are respected. We support the intention of the bill to improve equity in mental health outcomes and to eliminate mental health care disparities, in particular for Māori.

2. Compulsory Care: We note the General Policy Statement’s explanation of the compulsory care criteria, which are outlined in S 7.

“The criteria will ensure that compulsory care occurs only when it is reasonable and proportionate to the circumstances. People will not be compelled by others to receive mental health care unless they lack decision-making capacity and serious harm has occurred or is likely to occur imminently.”

3. Children and Young People: We note that in the additional section (S38) relating to children and young people that there is a statement about “ensuring that patients under the age of 18 are not given treatments intended to destroy any part of the brain or brain function”. We note also the forbidding of seclusion and the forbidding of electroconvulsive therapy except in cases of emergency.

We support this special care to protect the brain development and functioning, and the psychological well- being, of children and young people. We note similar provisions that apply to adults and the inclusion of further details about children. (S50, S 51)

3.1 We have concerns about the numbers of ‘gender distressed’ children who may be prescribed puberty blocker medication if referred to gender services. The link to brain function that we wish to make clear is related to evidence about the effects of puberty blockers. Although this controversial treatment is obviously not intended to destroy the brain or brain function, evidence does suggest that this treatment has negative effects on the development of the brain and because of this we consider it important to make a comment.

3.2 The Women’s Rights Party has concerns regarding children who may be in care situations and who are being directed towards affirmative medical services when they are suffering from what is terms ‘gender incongruence’ or when they are ‘gender questioning’. The “affirmative model” (as opposed to a non-medicalised approach) is promoted by Oranga Tamariki in their policy on child wellbeing and foster carers and homes will be in breach of policy if they do not follow these guidelines.

3.3 The Society for Evidence-Based Gender Medicine (SEGM) note that over 70% of young people diagnosed with gender dysphoria had at least one other psychiatric diagnosis (67% of males and 76% of females). In order of decreasing frequency, comorbid diagnoses were depressive disorders, anxiety disorders, borderline personality disorders, attention deficit/hyperactivity disorder, and post-traumatic stress disorders”.¹ Unfortunately when a ‘diagnosis’ of gender distress or dysphoria is made other disorders are often dismissed – this is called diagnostic overshadowing.²

This means that the complex health care issues and needs of these young people, that can be dealt with by other services, can be subsumed by the label of ‘gender dysphoria’ once they are diagnosed as having gender-related distress.

3.4 The findings of a systematic literature review and meta-analysis by Kallitsounaki and Williams (2022) also indicate a link between autism spectrum disorder and gender dysphoria/identity disorder. Findings suggest “(a) a positive relationship between ASD traits and GD/GI feelings among people from the general population, (b) an increased prevalence of GD/GI in the autistic population, and (c) an increased prevalence of ASD diagnoses and ASD traits in
the GD/GI population”.³

3.5 Points 3.3 and 3.4 indicate that children and young people experiencing what is termed ‘gender distress’ are especially vulnerable due to comorbid psychiatric diagnoses.

3.6 Baxendale reviewed the impact of suppressing puberty on neuropsychological functioning and concluded, “Critical questions remain unanswered regarding the nature, extent and permanence of any arrested development of cognitive function associated with puberty blockers. The impact of puberal suppression on measures of neuropsychological function is an urgent research priority.”⁴

3.7 Puberty-related hormones have wide ranging effects on brain structure, function, and connectivity, as described, and there are concerns about a permanent alteration of neurodevelopment.⁵ As described by Levine et al. there are also issues that follow on from treatment with puberty blockers related to cognition and informed consent, “The possible impact of puberty blockade on a young person’s cognition has important implications for the decision to initiate exogenous cross-sex hormones and the capacity to give informed consent”.⁶

3.8 Under the “gender-affirming” framework, puberty, which is a normal physiological process, is viewed as a disease that must be treated. Puberty blockers are the first step towards a range of further irreversible medical and surgical interventions.

We also have further feedback related to the language used in some sections of this Bill which we outline below.

We note that S 8 (1) defines seriously impaired mental health and S8 (2) outlines 11 categories from (a) to (k) which cannot solely determine seriously impaired mental health.

(1) Seriously impaired mental health means a serious impairment of mental functioning (which may be continuous or intermittent) that is characterised by delusions or by disorders of mood, perception, volition, or cognition.

(2) However, a person cannot be assessed to have seriously impaired mental health solely on the basis of any of the following:

• 4.1 We support most of the categories but disagree with the following two categories: “sexual preferences” and “gender identity”. We also discuss in the inclusion of “sex” as a category.
• 4.2 S8 (2) Seriously impaired mental health – a person cannot be assessed to have seriously impaired mental health solely on the basis of:
• (b) sexual preferences:
  
  The term ‘sexual preferences’ does not have the same meaning as ‘sexual orientation’. Sexual orientation refers to the sex someone is attracted to. Sex refers to the sex binary which denotes female and male and is a biological fact.
  
  Sexual orientation refers to the predominant focus of sexual attraction which is attraction to the same or opposite sex, or either/both – homosexuality, heterosexuality, or bisexuality. It is important to understand the difference between ‘sex’ and ‘gender’ and not to conflate the two – particularly in a legal document.
• 4.3 The Women’s Rights Party is concerned there are issues related to including what has been termed “sexual preferences” that may not have been considered fully.
• 4.4 Paraphilias could be included under the umbrella term of sexual preferences which is why we object to this term being included. Paraphilic disorders are recurrent, intense, sexually arousing fantasies, urges, or behaviours that involve inanimate objects, children, or nonconsenting adults – usually women. There are some paraphilias that are illegal including paedophilia. There are also comorbid psychopathic traits associated with paraphiliac disorders.⁷
• 4.5 We fail to understand why paraphilic men (who may also have narcissistic personality disorder and other comorbid psychopathic traits) who have a sexual preference that focuses on children, non-consenting women, animals, or dead bodies would appear to be considered to not have “seriously impaired mental health” in this Mental Health Bill.
• 4.6 S8(2) (b) “Sexual preferences” should therefore not be used in this context. We think the term “sexual orientation” is a better term, given that it is well accepted that lesbian, bisexual and homosexual sexual orientations are normal and healthy, and sexual orientation is a protected category in the Human Rights Act. Until recently it would have seemed that lesbian, gay and bisexual sexual orientations are now so accepted that there is no need to include sexual orientation in the Mental Health Act, as it is unlikely that people would be deemed mentally ill on account of their sexual orientation. However, in recent years we have seen an erosion of the rights of lesbians, gays and bisexuals to their same sex attraction. There has been pressure on lesbians, in particular, to accept, as sexual partners, members of the opposite sex, who claim to be the same “gender” as them.
• 4.7 Furthermore, children who would be likely to grow up to be gay, are being told that they are “born in the wrong body” and encouraged to transition to appear to be the opposite sex. This can be seen as a new form of gay conversion therapy, because many of these potentially gay children, if they transition, would instead grow up to appear to be heterosexual.
• 4.8 For these reasons, we think it is important to protect the recognition of the validity and mentally healthy nature of same sex attraction in this Bill.
• 4.8 For these reasons, we think it is important to protect the recognition of the validity and mentally healthy nature of same sex attraction in this Bill.
• 4.9 We recommend replacing “sexual preferences” with “sexual orientation”.
• 5. S8 (2) Seriously impaired mental health – a person cannot be assessed to have seriously impaired mental health solely on the basis of:
  • (c) gender identity:
  • 5.1 The Women’s Rights Party is concerned that there are issues related to ncluding what has been termed “gender identity” that may not have been considered fully.
  • 5.2 For clarity – ‘gender’ refers to the roles and behaviours expected of and often imposed on women and men. These have varied across time and cultures and are often referred to as masculinity and femininity – unfortunately these roles are often stereotyped to the detriment of those who do not conform in appearance or behaviour to what is considered ‘normal’.
  • 5.3 The Women’s Rights Party does not consider it appropriate to use the term “gender identity” as this terminology is highly contested and ideologically based. We would be interested to hear what the Select Committee considers to be its understanding of “gender identity”.
  • 5.4 The word “gender” is often used as a synonym for sex, but it has more than one meaning, and conflating the two can cause confusion. This conflation of the two words is pervasive in policies, literature and legal documents and there is an urgent need to address this issue and resolve confusion.
  • 5.5 As described by the UK organisation Sex Matters “Gender-identity ideology, or gender-identity theory, is the claim that everyone has an inner “gender identity” and that when a person’s beliefs about their gender identity conflict with their biological sex, it is the gender identity that determines the person’s “true self”.⁸
  • 5.6 Because a gender identity is not a universal human characteristic, but instead is part of an ideology or belief system, it can only be protected legally as a belief.
  • S8 (2) (a) states that (2) a person cannot be assessed to have seriously impaired mental health solely on the basis of :
    (a) political, religious, philosophical, or cultural beliefs, values, or opinions.
    
    So, a person professing a gender identity is protected by S8 (2) (a) as their belief in their gender identity cannot be used as a sole basis to assess them as having seriously impaired mental health.
  • 5.7 If by “gender” we really mean sex-based stereotypes, it could also be possible to add another subsection which states:
    
    (2) a person cannot be assessed to have seriously impaired mental health solely on the basis of: (..) “non- conformity to sex- based stereotypes”.
• (6) The Importance of Sex
• 6.1 There is in fact no necessity to use the disputed notion of “gender identity” to protect peoples’ rights to non-conformity and self-expression. The protected category of sex protects all men and women regardless of whether they claim an identity or not.
• 6.2 A science-based definition of sex is essential in law.
• 6.3 We have already discussed how important it is to understand biological sex, in order to understand sexual orientation.
• 6.4 Concepts of “gender Identity” do not address the very real issue of sex discrimination and the potential mistreatment of women because of their sex.
• 6.5 Women are exposed to discrimination and sexism, and environments that negatively impact on their health and wellbeing and these experiences are often related to sex-based discrimination.⁹
• 6.6 A UK study analysed data from nearly 3,000 women over a period of four years. Interestingly few men reported sex discrimination so were not included in the study analysis. One in five women reported sex discrimination.¹⁰
• 6.7 Feminist writers such as Phyllis Chesler, have suggested that women are often punitively labelled as “mentally ill” when they don’t conform to the sex roles expected of them.¹¹
• 6.8 Given the evidence that women experience discrimination because of their sex, we consider that if any exception is deemed to be justified, the most important one would the basis of their sex. The exception would read as follows:
  
  (2) “However, a person cannot be assessed to have seriously impaired mental health solely on the basis of the following – (a) Their sex – female or male.”
  
• 7. S166 Co-opting suitable persons
• (1) A Mental Health Tribunal may co-opt
• (c) a person of the same gender as the patient, if no member of the Mental
  Health Review Tribunal is of that gender;
  • 7.1 The Women’s Rights Party has concerns about the erasure of women’s rights
    in terms of their right to same-sex care, advocacy and support. If the word gender is substituted for sex, then a male identifying as a woman would be considered a suitable person. This is unacceptable.
  • 7.2 In situations where a woman is either unable to give consent or is unaware of the sex of the co-opted person, a co-opted male identifying as a woman is inappropriate.
  • 7.3 Clear policies addressing the difference between “sex” and “gender” is necessary.
  • 7.4 In all matters of health, including mental health, it is critical that accurate information about a person’s sex is available.
  • 7.5 Identifying any possible abuse that could occur within the mental health system to prevent such abuse is essential. Conflating “sex” and “gender” removes previously established safeguards and protections – particularly for children and vulnerable women.
  • 7.6 It is important that a woman ( or man) can choose to have a person of the same sex as them on the Mental Health Tribunal. The language in section 166 should change from “gender” to “sex”
  • 7.7 166 (1) (c ) should read: (1) A Mental Health Tribunal may co-opt
    (c) a person of the same sex as the patient, if no member of the Mental Health Review Tribunal is of that sex.
  • 166 (2) should state that the Tribunal must co-opt someone of the same sex, if the person requests it.

The Women’s Rights Party recommends that the words “gender” and “gender identity” are not included in the Mental Health Bill.

We note the recent major reforms of the Mental Health Bill in the UK and that the words “sex” and “gender” were not considered necessary to be used in the Bill or the amendments. Instead, the reforms aim to improve patient experiences, choice and autonomy as well as tackling racial discrimination and better supporting those with learning disabilities. The needs of those people with learning disabilities and/or people with autistic spectrum disorder are specifically addressed.

We support the intention of the New Zealand Bill to improve patient choices and autonomy and to reduce the levels and length of compulsory treatment. We support the intention of the Bill to provide more equitable services for Māori.

We recommend that the word “gender” is replaced with the word “sex” in the New Zealand’s Mental Health Bill. Including concepts of sex and sexual orientation in the Bill will help to ensure clarity and tackle discrimination that women and same-sex attracted people face.

Legislation and policy must not be at the expense of biological women, whose rights, safety, and freedoms are currently protected on grounds of sex. Inserting the word “gender”, or the widely contested ideology of “gender identity”, into law will result in discrimination against women’s rights. There is no sound basis for inserting the words “gender” or “gender identity” into a legal document.

Submitted on behalf of the Women’s Rights Party by Jill Ovens National Secretary and Co-leader

1. Society for Evidence Based Medicine (SEGM) (2024). The Gender Dysphoria Diagnosis in
   Young People Has a “Low Diagnostic Stability,” Finds a New German Study.
   https://segm.org/gender-dysphoria-diagnosis-desistance-germany ↩︎
2. Cass, H. (2022). The Cass Review. Independent review of gender identity services for
   children and young people: Interim report. https://cass.independent-
   review.uk/home/publications/interim-report/ ↩︎
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   and those who sexually offend: a narrative review of treatment modalities. Int J Impot Res
   https://doi.org/10.1038/s41443-023-00816-z ↩︎
8. Sex Matters. https://sex-matters.org/resources/sex-and-gender-faqs/ ↩︎
9. Hosang, G. M., & Bhui, K. (2018). Gender discrimination, victimization, and women’s mental
   health. The British Journal of Psychiatry, 213,682-684. ↩︎
10. Hackett, R.A., Steptoe, A., Jackson, S.E. (2019). Sex discrimination and mental health in
    women: A prospective analysis. Health Psychol, 38(11),1014-1024. doi: 10.1037/hea0000796. ↩︎
11. Phyllis Chesler, Women and Madness, https://phyllis-chesler.com/pages/books/women-and-madness ↩︎