Submission in relation to Petition CRM:0126015
- May 1
- 12 min read
May 1st 2025
Petition Request
Petition Reason
Speak Up for Women (SUFW) is a feminist organisation seeking to ensure freedoms, safety, language and identities are protected for women and girls in New Zealand. We believe that if "sex" in legislation such as the HRA is interpreted to mean anything other than the biological meaning, women and girls can't rely on sex-based rights to keep them safe and able to participate fully in society. We think women need (some) facilities, services, sports and opportunities that are just for them.
Introduction & Background
Speak Up for Women (SUFW) is a feminist women’s rights organisation with a focus on promoting, protecting and advocating for single-sex spaces, services, sports and opportunities for women and girls.
This submission will cover issues that are relevant to our petition and to our position that sex has an ordinary biological meaning in law. We are providing this submission at the suggestion of the Petitions Committee, who have given us the opportunity to provide supporting information and background. This submission will be available publicly on our website.
We would welcome the opportunity to discuss this document and our petition with the Committee in person.
We will work loosely in chronological order, starting with the 2006 Crown Law opinion and finishing with the recent UK Supreme Court Judgment on the meaning of sex in the Equality Act 2010. There are many areas of public policy where we believe gender has been prioritised over sex and we look at some of these also.
As a way of providing background information on SUFW and our position in these matters, it would be useful to reference the following from our May 2023 article Responses to Media Questions. Not all of this relates specifically to our petition or this submission but it is a useful guide to our overriding position.
In the same way we have no particular view or opinion on other demographic groups as a whole, we have no particular view on people who identify as transgender. Additionally, we note that ‘transgender’ has become a very wide umbrella term that rests on self-identification.
We support equal human rights for all people, including the right to live free from violence and harassment; the right to freedom of speech and association; the right to access employment, education, housing, and healthcare without discrimination based on demographic or identity group.
We note that many, if not most, people are arguably, in some respects, gender non-conforming regardless of whether they assert a transgender identity or not. We support the rights of all people to adopt whatever personal or social presentation is comfortable for them and to either adhere to or reject sex stereotypes in accordance with their personal preferences. Many of our supporters are lesbians or gender non-conforming.
Where we draw the line is the demand that a person's subjective “gender” self-identification should be affirmed in all situations in society, law and policy with no exceptions. Regarding males who say they are or would like to be women (i.e. trans-identifying males or “transwomen”), we draw the line at services and facilities and opportunities that are single sex, that is, for females.
In most day-to-day situations, a person's sex is not relevant. However, in situations where sex is relevant, we believe that sex should be the primary consideration, not a person's asserted “gender” identity. This means retaining services and facilities and opportunities for females and excluding all males–including men who want to be or claim to be women or non-binary.
A note on language
The SUFW foundation is that we are sex realists. Our position on sex-based rights is centred on the reality that human beings cannot change sex.
When we refer to transwomen or trans-identifying males, we are referring to adult human males.
We use the term ‘woman’ frequently in this document. In every case it means an adult human female.
We do not believe that sex is assigned at birth, it is observed at birth. This is the basis of our worldview and is not negotiable.
Crown Law Opinion (2006) on the Human Rights Act
Crown Law was asked in 2004 for a legal opinion on whether changes to the Human Rights Act 1993 (HRA) were necessary in order to provide protection for transgender people under this Act.
The opinion was issued in 2006 and the short answer at that time was no, transgender people are already protected under the Act under the protected characteristic of sex.
The opinion specifically covers whether people are protected on the grounds of gender identity, not whether a person professing a gender identity that is at odds with their biological sex is to be considered to be the opposite sex for all purposes and in all instances in the Act.
We agree with the opinion in some aspects. The rationale is that everyone has a sex (immutable) and gender identity discrimination occurs when a person is disadvantaged for not presenting or acting in a way that is “acceptable” for a person of that sex. It can extend to them having made changes to their secondary sex characteristics. The fact remains that any discrimination is grounded in the reality of a transgender person’s sex. In this regard the 2006 opinion makes sense, it is legislating against enforcing sex stereotypes in housing, employment and in access to public services.
But the opinion does not say that gender identity is the same as sex, it says that transgender people should be protected from discrimination under the protected characteristic of sex. The lawful discrimination / exception instances still apply, and in the case of s45-49 of the Act, sex is the characteristic to be considered.
Search and Surveillance Act 2012
This Act applies to Customs and Police, the word ‘sex’ appears four times in three sections (s12, s125, s126) and relates to the sex of the person conducting or witnessing any part of a strip search.
s126 Guidelines and rules about use of strip searching
The chief executive of a law enforcement agency that employs persons who may exercise a power, under an enactment, to search a person must issue guidelines to those employees concerning the circumstances (if any) under which a strip search may be conducted by any of those employees.
The chief executive of a law enforcement agency who issues guidelines under subsection (1) must ensure that a copy of those guidelines is publicly available on the agency’s Internet site.
A search of the person is not unlawful by reason only of failure by the person conducting the search to comply with a guideline issued under subsection (1).
A strip search may be carried out only by a person of the same sex as the person to be searched, and no strip search may be carried out in view of any person who is not of the same sex as the person to be searched.
Both Customs and Police have chosen to replace the word sex with the subjective term ‘gender identity’ in their respective strip search guidelines. We wrote to these two organisations about this in March. In reply, Mike Webb, Chief Assurance Officer of Police said:
We would argue that if sex does not mean “biological sex” then section 126(4) is pointless. The Stats NZ definition of gender is discussed later in this document.
Police claim their policy is “fit for purpose … lawful and … in line with best practice”. They state they wish to offer people “whose gender identity differs from their biological sex the ability to identify the gender of the person they would prefer to be searched by,” with no mention or consideration of the effect on their female staff (potentially having to search male detainees), or women who don’t have a ‘gender identity’ who care about the sex of the person searching them.
They declare, “our policy settings reflect the diversity of communities we serve,” with no regard for the women they serve and employ.
The Births, Deaths, Marriages, and Relationships Registration Act 2021 and Section 79(2)
The Births, Deaths, Marriages, and Relationships Registration Act 2021 (BDMRR) was the first time that the issue of sex or gender had been considered in legislation since the 2006 Crown Law opinion, and it is worth noting that the lawmakers took the opportunity to differentiate between certificated sex and biological sex. They also noted the difference between sex and gender and referenced the HRA. They did this using a section in the BDMRR Act, s79(2).
s79 Certificates as evidence
A certificate issued under this Act is admissible as evidence in any legal proceedings and is presumed, in the absence of evidence to the contrary, to be an accurate record of the information recorded in the registry as at the date of issue.
Any individual, private sector agency, or public sector agency authorised or required to ascertain an individual’s sex or gender for a particular purpose may take into account either or both of the following:
the information contained in a certificate issued under this Act:
any other relevant information.
The explanatory notes for this are contained in Supplementary Order Paper 59 and are as follows (note, s80 became s79 in the BDMRR Act 2021):
The Department of Internal Affairs (DIA) did a respectable job of informing people visiting the FAQ section on their website of the limitations (due to s79) of the birth certificate change.
The following is from the “Questions about the implications of self-identification for service providers” section:
So as recently as 2021, our lawmakers were demonstrating that biological sex, certificated sex, and gender were to be differentiated and that our legislation would accommodate these differences. In other words, sex does not mean gender, gender does not mean sex and changing a marker on a birth certificate does not change a person's biological sex.
The proposal of the BDMRR brought our group, SUFW, into being because concerned women could see the clash of rights straight away. Lawmakers at the time agreed and inserted s79(2) in response to the concerns we raised. However, things have become muddied in practice, and with this petition we are continuing our sisters’ hard work to clarify the law and ensure women’s sex-based rights are upheld.
Stats NZ Tatauranga Aotearoa
Stats NZ provides data standards for various terms and concepts used across data collection and reporting for all of Government.
The data standards / concept definitions for gender, sex and variations of sex characteristics are:
The definitions related to gender are entirely subjective and have no place in our legislation.
The idea that a person's sex can change over the course of their lifetime (with no apparent explanation!) is ideological and again has no place in our legislation.
They are further proof of the ideological capture of our policy makers and the reason we need sex defined in law.
Te Kāhui Tika Tangata Human Rights Commission
The Human Rights Commission (HRC) continues to provide conflicting advice, ignoring the DIA advice and making presumptions about the extent to which the 2006 Crown Law Opinion applies. This is currently their advice to trans-identifying males wishing to attend a women-only swim session (see the “Sport and community” section):
This may be what they want the law to say, but it is not what the law does say.
Here the HRC is conflating two separate issues: firstly, the right to not be excluded from a service to the public; and secondly, the right of a public service to lawfully exclude people on the basis of (in this case) sex.
A trans-identifying male should not be excluded from a service provided to the public because he is transgender, but he may be excluded from a service that is lawfully discriminating on the basis of sex, because he is male.
In the case of swimming sessions, it is ultimately up to the service provider whether they provide single-sex sessions, but if they do, and if they allow some males (those who are trans-identifying) to attend but not other males, they are in fact discriminating against those other males.
Although the HRC says that information on its website shouldn’t be taken as legal advice, it is reasonable to expect people to believe what they read from the body that exists to uphold the Human Rights Act. It does beg the question - if the HRC did issue legal advice, what would it be?
The NZ First Members Bill - Legislation (Definitions of Woman and Man) Amendment Bill
While this bill is a good opportunity to clarify what a woman is, legally, there are very few instances where the meaning of the word “woman” is contested.
Section 48 of the HRA, ‘Exception in relation to insurance’, uses the words woman and man as well as sex to explain the section of the Act that allows people providing insurance to lawfully discriminate on the ground of sex (as well as disability and age).
The Equity Pay Act 1972 uses female and woman interchangeably.
The Abortion Legislation Act 2020 uses the word woman frequently, but it would be fair to say that the meaning in this Act will never be contested.
The Members Bill affirmation that a woman is an adult human female will have the benefit of providing weight to those who wish to uphold the social contract that has traditionally protected women and girls. The contract that gives a woman the right to speak up if a male is in a space where up until a few years ago, the whole world knew he had no rightful reason to be.
In our opinion, this Bill doesn’t go far enough to protect the sex-based rights of women and girls. In our anti-discrimination law, the HRA, there is no protection or exception on the basis of being a man or a woman; the group characteristic, the word that needs defining, is ‘sex’.
The UK Supreme Court Decision on Biological Sex
On 16th April 2025 the UK Supreme Court handed down a judgment in the case of For Women Scotland Ltd v The Scottish Ministers which determined the correct interpretation of the protected characteristic of sex in the Equality Act 2010. It concluded (at paragraph 264):
While there are differences between the UK Equality Act 2010 and the NZ Human Rights Act 1993, there are also many similarities and several relevant points:
The concept of certificated sex vs biological sex. See the earlier section on the BDMRR Act 2021 for key differences between the UK Gender Recognition Certificate (GRC) and the NZ Birth Certificate changes permitted under the Act.
The issue for the UK Supreme Court was whether there were provisions in the Equality Act 2010 that indicated that the biological meaning of sex was plainly intended and/or that a “certificated sex” meaning rendered those provisions incoherent or as giving rise to absurdity.
The Court said that, “An interpretation that produces unworkable, impractical, anomalous or illogical results is unlikely to have been intended by the legislature.” See para.160.
In short, the Court concludes that the significant differences between women and transwomen mean that sex must be interpreted to mean biological sex, which does not alter when a person obtains a piece of paper recording a change in sex, or announces that they are now the opposite sex to that observed at their birth.
The Court goes on to detail the obvious differences between the two sexes, for example:
171. The definition of sex in the EA 2010 makes clear that the concept of sex is binary, a person is either a woman or a man. Persons who share that protected characteristic for the purposes of the group-based rights and protections are persons of the same sex and provisions that refer to protection for women necessarily exclude men. Although the word “biological” does not appear in this definition, the ordinary meaning of those plain and unambiguous words corresponds with the biological characteristics that make an individual a man or a woman. These are assumed to be self-explanatory and to require no further explanation. Men and women are on the face of the definition only differentiated as a grouping by the biology they share with their group.
172. A certificated sex interpretation would cut across the definition of the protected characteristic of sex in an incoherent way. References to a “woman” and “women” as a group sharing the protected characteristic of sex would include all females of any age (irrespective of any other protected characteristic) and those trans women (biological men) who have the protected characteristic of gender reassignment and a GRC (and who are therefore female as a matter of law). The same references would necessarily exclude men of any age, but they would also exclude some (biological) women living in the male gender with a GRC (trans men who are legally male). The converse position would apply to references to “man” and “men” as a group sharing the same protected characteristic. We can identify no good reason why the legislature should have intended that sex-based rights and protections under the EA 2010 should apply to these complex, heterogenous groupings, rather than to the distinct group of (biological) women and girls (or men and boys) with their shared biology leading to shared disadvantage and discrimination faced by them as a distinct group.
173. Moreover, it makes no sense for conduct under the EA 2010 in relation to sex-based rights and protections to be regulated on a practical day-to-day basis by reference to categories that can only be ascertained by knowledge of who possesses a (confidential) certificate. Some of the practical consequences of a certificated sex definition are described in the case presented by Sex Matters. They state that uncertainty and ambiguity about the circumstances in which it is legitimate to treat (biological) women and girls as a distinct group whose interests need to be considered and protected, have the effect that many organisations now feel inhibited in doing so.
The judgment goes on to list examples in the Equality Act where an interpretation of Sex as being certificated sex (rather than biological) is not sensible, logical or coherent. There are many examples and we have included only a few:
184. [insurance contracts] … In the case of sex discrimination, it is impossible to see how an assessment of the differential risk known to be posed by, say, women and men drivers, could possibly be made reference to actuarial or other reliable data sources that had also to take account of certificated sex based on a GRC. There is no rational basis for thinking that having a certificate could make a difference to the risk posed by drivers of different sexes. Here too, sex can only mean biological sex.
186. … A certificated sex interpretation would make paragraph 2(2)(b) unworkable: it would be impossible to identify “risks specifically affecting women” because the same health or safety risks would also naturally and inevitably be risks that affect trans men with a GRC who would be legally male on this interpretation (albeit biologically female) and therefore liable to be affected by the same risks.
204. The second core provision is section 12 of the EA 2010 which defines the protected characteristic of sexual orientation and is framed by reference to orientation towards persons of the same sex, the opposite sex, or either sex. Read fairly, references to sex in this provision can only mean biological sex. People are not sexually oriented towards those in possession of a certificate.
Conclusion
We are asking for:
Women and girls deserve for the legislation set up to protect them to be at the forefront of policies and regulations, not ideological activism.
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