For the second time in as many days, New Zealand women are celebrating that the tide is turning on gender ideology.
Deputy President of the Supreme Court Lord Patrick Hodge, said that the terms “woman” and “sex” in the Equality Act 2010 referred to a biological woman and biological sex.
The ruling represents a significant defeat for the Scottish government. A group of women, For Women Scotland, had initially challenged legislation that allowed those with a GRC to sit on public boards in posts reserved for women.
Women’s Rights Party Co-leader Jill Ovens praised the women who organised in Scotland, across the UK, and who won global support under the catch cry “We will not wheesht”.
“The women refused to be silenced. After losing their case in the Scottish courts, the women took their case all the way to the UK Supreme Court in a seven-year battle,” Ms Ovens said.
The decision has significance in the New Zealand context because the Law Commission is preparing a report to Parliament, due in June, about whether “gender identity and expression” should be included in the New Zealand Human Rights Act.
The Women’s Rights Party opposed this as it would impact on current protections for biological women where discrimination in favour of women is allowed under certain circumstances, such as sport, or counselling services, or hostels.
The UK Supreme Court found that while the word “biological” did not appear in the definition of man or woman in the Equality Act, “the ordinary meaning of those plain and unambiguous words corresponds with the biological characteristics that make an individual a man or a woman”.
Although the Court said that “read fairly and in context, the provisions relating to single-sex services can only be interpreted by reference to biological sex”, Ms Ovens said the reality had been that public bodies and NGOs, including here in New Zealand, have been allowing men who identify as women to access spaces where women are vulnerable. These include women’s refuges and changing facilities where women are undressing, for example at public swimming pools and at work.
The New Zealand equivalent anti-discrimination legislation names “sex” as the first of 13 protected grounds of discrimination, and further clarifies that sex “includes pregnancy and childbirth”.
The list of protected grounds also includes “sexual orientation”, which is about the attraction that a person can have either to their own sex, the other sex, or both sexes. It is distinct from “gender identity” which is a feeling or belief that one is the opposite sex, hence the mantra “transwomen are women”.
The New Zealand Human Rights Act does not include “gender identity”, unlike the UK Equality Act, which includes “gender reassignment”, with or without a gender recognition certificate, as we now know from the UK Supreme Court decision.
Ms Ovens said that in its submission to the Law Commission, the Women’s Rights Party recommended that the s21 Prohibited grounds of discrimination remain as they are.
“We also drew attention to international law, which New Zealand is obliged to abide by. The sex provisions of the Human Rights Act were written in order to comply with CEDAW (Convention on the Elimination Against All Forms of Discrimination Against Women),” she said.
“We said that any changes to the law which reduced or removed the protections on the grounds of sex, both the anti-discrimination provisions and the exceptions where discrimination is permitted on the grounds of safety, dignity and privacy, would be in breach of CEDAW.”
The Women’s Rights Party called for a clear science-based definition of “sex” and provided the following suggestion:
A person’s ‘sex’ refers to a person’s biological sex (either male or female).
‘Women’ and ‘girls’ refer to human females, and the words ‘men’ and ‘boys’ refer to human males.
The Human Rights Act includes exceptions where it is lawful to discriminate under certain circumstances.
Section 43 for example allows for places, vehicles and facilities that have public access to provide for separate facilities for each sex on the ground of public decency or public safety.
In the only place in the Act where sex is defined as a man or a woman, Section 47 allows for goods and services to be provided by one sex, either a man or a woman, in accordance with “normal practice”.
Ms Ovens said this applied to provision of personal care services in healthcare, for example.
The UK Supreme Court said that allowing men who identify as women the same legal status as biological women could also affect spaces and services designed specifically for lesbians, who had also suffered historical discrimination and abuse.