Since January 2023, Te Aka Matua o te Ture | Law Commission (Commission) has been examining the protections in the Human Rights Act 1993 (Act) for people who are transgender, people who are non-binary and people with innate variations of sex characteristics (sometimes known as intersex). Earlier this month, the Commission completed and presented its final report to the Minister of Justice (Report). 

Admission to single-sex schools

Under section 58(1) of the Act, single-sex schools that are “maintained wholly or principally” for students of one sex are allowed to refuse to admit students of a different sex. The Commission has recommended that this section be amended to specify that it does not entitle such educational establishments to refuse to admit a student whose gender identity aligns with the sex of the school (eg a transgender girl being admitted to a single-sex girls' school).  

The Commission was not convinced that admitting what is likely to be, at most, a handful of transgender students to a single-sex school would interfere with its general character. The summary of the Commission’s rationale for this recommendation was:

• transgender children and young people are a vulnerable group, and their rights to equality, dignity, and autonomy should not be restricted without good reason - especially in the context of something as important as education;
• school choice plays a significant role in supporting the mental wellbeing of transgender students; 
• transgender students often face challenges in finding a suitable school, so their school choice should be maximised; and
• requiring admission based on sex assigned at birth could pressure students to change their birth certificate, which the Commission viewed as an undesirable public policy outcome.

What does this mean for schools?

While we note that the Report is only a recommendation at this point, the likely impact for schools, should the Government progress with the reform as suggested, might include:

• needing to adjust admissions processes to accommodate gender-diverse students. This may also extend to a revised admission agreement as well. Revisions could include amending terminology such as “sex” to “gender” and ensuring that gender identity, not birth certificate sex, is the basis for admission decisions;
• reviewing policies as these may historically align with binary gender categories; and
• schools will need to be mindful of the privacy rights of gender-diverse students when navigating any issues or concerns within the wider school community. 

Shared single-sex accommodation

Section 55 of the Act currently allows for shared accommodation to be provided for people of just one sex. The Commission has recommended that this section be amended to clarify that it does not permit the exclusion of a person whose gender identity aligns with the designated sex of the accommodation unless it is reasonably required to preserve the privacy or to protect the welfare of any occupant or potential occupant of the accommodation. The Commission considered this flexibility as necessary as the section covers situations in which accommodation is provided for people who are particularly vulnerable for reasons such as age (for example, boarding schools and aged care facilities) or trauma (for example, women’s refuges).

The summary of the Commission’s rationale for this recommendation was it:

• balances the rights of transgender individuals with privacy and safety concerns of other occupants;
• recognises the socials norms around gender identity and communal living; and
• applies to a wide range of accommodation types, including board schools.

Single-sex facilities

Currently sections 43(1) and 46 of the Act allow for separate single-sex facilities, such as bathrooms, for reasons of public decency or safety. The Commission has recommended that these sections be amended to clarify that they do not permit service providers to exclude a person from a single-sex facility that aligns with their gender identity. 

The summary of the Commission’s rationale for this recommendation was:

• evidence shows transgender and non-binary people face significant safety risks in facilities that do not match their gender presentation, while it found no evidence that allowing access based on gender identity increases risks for cisgender women;
• while concerns about privacy and modesty are valid, they are outweighed by the harms of exclusion and facilities often offer ways to manage privacy concerns, such as individual stalls; and
• it best aligns with the Act’s values and supports inclusion without significantly changing how people use public facilities.

Where to from here?

The Minister will now present the Report to Parliament, and the Government will consider the Commission’s recommendations and decide whether to propose any amendments to the law as a result. At this stage, it is unclear as to whether these proposed changes would have the support needed to progress any further. 

Get in touch

Please feel free to reach out to any of our experts if you have any questions about this article or about how to best manage these situations under the current legislation.

Special thanks to Ngahuia Muru and Caitlin Walker for their assistance in writing this article.