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Gender and gender identity

Intersex people

The law doesn’t say much about intersex people

“Intersex” is an umbrella term that’s used to describe people born with variations of sex characteristics (such as hormones, chromosomes, genitals and internal reproductive organs) that don’t clearly fit binary notions (meaning it’s one or the other) of male or female bodies.

There’s not much in the law that talks explicitly about intersex people and their experiences. However, the Human Rights Commission hosted a Roundtable in 2017 that made recommendations including law and policy changes.

Discrimination against intersex people

Human Rights Act 1993, s 21(1)(a)

The law protects people from discrimination based on their sex or gender, and the Human Rights Commission thinks that this includes being intersex. So that would mean that no-one can discriminate against you in areas like housing, education, employment, or goods and services just because you’re intersex, and the government can’t discriminate against you in its decision or actions. This point has not really been tested by the courts in New Zealand.

If you think you’ve been discriminated against because you are intersex, you can contact the Human Rights Commission for advice: see ‘Where to go for more support‘ for details, and for more information about discrimination law, see the chapter “Discrimination”.

Surgery on intersex babies and children: Who can give permission for this?

Darlington Statement, 2017

When a baby is born and identified as intersex, some parents, whānau or medical staff might want the child to have genital surgery as part of assigning a female or male gender to the child.

Care of Children Act 2004; Case: [2008] 1 NZLR 409

In general, parents are legally allowed to make all medical decisions for their children until they are old enough to make decisions for themselves. There is no specific age at which children can make their own decisions, as the law says it depends on the particular child and their ability to understand what’s going on.

Calls to ban surgery on intersex babies and children

There have been calls for a law change that prevents those surgeries and affirms the rights of intersex people to make these decisions about their bodies for themselves when they’re old enough to do so. These calls have come from intersex community organisations and from two United Nations committees reporting on New Zealand’s human rights performance.

The Darlington Statement, a joint statement made by Australian and New Zealand intersex organisations and advocates in 2017, suggests that genital surgery on intersex babies and children should be a crime. It argues for greater human rights and recognition for people with diverse sex characteristics.

For free advice on your own situation, as an intersex person who has had surgery as a child, or as a parent or friend of a child who might potentially be operated on, you can contact Intersex Awareness New Zealand, the Human Rights Commission or the Health and Disability Advocacy Service. See “Where to go for more support” for details.

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