Humans have human rights. That might sound somewhat obvious, but the Law Commission’s Ia Tangata review suggests that it’s timely to revisit this truth.
The review is expected to publish recommendations soon. It asks whether the Human Rights Act needs to be amended to add or strengthen anti-discrimination rights for people who identify as trans or non-binary, or have an innate variation of sex characteristics. Among other things, the Commission is considering whether something like gender identity should become a prohibited ground of discrimination, and whether “misgendering” or “dead naming” should be treated as unlawful discrimination.
The Commission’s issues paper is a sober exploration of sensitive issues but it rests on some important, and largely unacknowledged, assumptions. Taken together, these assumptions add up to a particular anthropological understanding, and they are not neutral. In other words, the Commission’s assumptions about what humans are like inevitably shapes its ideas about the rights that humans have.
First, and most obviously, the Commission treats sex as something “assigned” at birth. This phrase, repeated throughout the issues paper, assumes that sex is separable from the person and their body. By contrast, a feminist coalition of academics and civil servants point out in their submission that sex is a biological term, that men and women are distinguished by the type of gametes that their bodies are oriented to producing. On this view, sex is observed, not assigned. It is a stable category, not a social construct.
This matters because, if sex doesn’t have a stable meaning, it becomes impossible to protect sex-based rights. Biological males can’t be excluded from women-only spaces, even for reasons of privacy or safety, if biology and sex are severed—a point that the UK Supreme Court recently found compelling.
Second, the Commission treats people as having a gender identity that is separable from, and different to, their sex. It defines gender identity as someone’s “internal and individual experience of gender”. Behind this is an assumption that “each person has a unique core of feeling and intuition that should unfold or be expressed if individuality is to be realized,” to quote the sociologist Robert Bellah, who called this belief “expressive individualism”. This is, quite literally, a metaphysical belief, one that has a lot in common with the ancient philosophy of Gnosticism, which saw our material bodies as a “mere instrument” in service of our true selves.
Others hold different metaphysical beliefs. For example, the Commission’s approach conflicts with orthodox Christian faith, which rejects Gnosticism and holds that biological sex and the male-female binary is part of the created fabric of the world, an icon of the relationship between God and humans. Not, in other words, something that sincere believers can discard lightly.
That doesn’t mean that the Commission should adopt a religious view like this, but our dialogue about human rights must at least acknowledge these alternative views exist and allow them to challenge the assumptions of expressive individualism. The fact that scholarship over centuries has rejected the proposition that humans are some kind of ghost in a machine might give us pause for thought in the twenty-first century.
It might also mean that we treat those alternative views with more respect. As we pointed out in our submission, the Commission’s discussion of “misgendering” and “dead naming” doesn’t seem to recognise that choosing not to used a changed name or preferred pronouns might reflect a genuine and respectful exercise of conscience, motivated by sincere secular or religious beliefs, rather than ill-will. Lack of familiarity with alternative views might therefore result in restrictions on other important rights, like freedom of conscience and expression.
This lack of familiarity is a key gap in the Commission’s work to date. It will be difficult to overcome unless the Commission recognises that its work rests on important cultural, anthropological and theological assumptions—in other words, on articles of faith in which it has no real expertise as a law reform body. Similarly, the Commission needs to be informed by the best available science and allow that to shape its understanding of biology and of sex, and consequently of sex-based rights.
It is not the Commission’s fault that it lacks this expertise, but it is important that its forthcoming report acknowledges the gap. That report should demonstrate much greater engagement with a wider range of sources and traditions than the issues paper, and show how the Commission has reflected on its starting assumptions. It might also recommend to the responsible Minister that any law reform proposals are developed in partnership with representatives of those views, rather than confining their contributions to a submissions process.
Most of all, the Commission’s work is an invitation to all of us, an entry point into a broader dialogue that goes beyond any individual law reform proposal. It’s an opportunity to reconsider assumptions, and to revisit the hegemony of expressive individualism and modern forms of Gnosticism. It’s an invitation to discuss what it means to be human, and what this means for human rights.
