Analysis: Human Rights Commission's Definitions Bill submission
To be sent to MPs engaging with the Legislation (Definitions of Woman an Man ) Amendment Bill.
I have reviewed and analysed the Human Rights Commission’s submission on the Legislation (Definitions of Woman and Man) Amendment Bill. I intend to send this to key members of Parliament who are engaging with the Bill in the hopes that they challenge the Human Rights Commission on some of their failings when they appear in person.
The New Zealand Human Rights Commission presents its submission on the Legislation (Definitions of Woman and Man) Amendment Bill as a straightforward application of established human rights principles. It repeatedly invokes dignity, equality, inclusion, and non-discrimination as though they inevitably compel opposition to biological definitions of sex. Yet beyond the smokescreen of language of human rights, the submission is weakly argued and based on an ideologically entrenched position.
Rather than carefully analysing whether Parliament may legitimately define sex-based legal terms, the submission assumes the answer from the outset. No. And from there flows the central weakness running throughout the document in that it substitutes moral assertions for legal argument, appeals to select authority for reasoning, and focuses on rhetorical claims of harm, not careful analysis of what the Bill actually does. The result is a submission that is rhetorically sophisticated but analytically vapid.
The most fundamental problem is that the HRC repeatedly treats “human rights” as though they constitute an answer rather than a framework for analysis. The submission opens by asserting that every person deserves dignity, belonging, and equal treatment, before concluding that recognising gender identity within legal definitions of “man” and “woman” necessarily follows from those principles. That implies, rather explicitly, that to define sex is to strip dignity, belonging, and equality. But this is not what Parliament is being asked to determine. Whether legal terms referring to sex should be grounded in biology or gender identity is not answered merely by invoking dignity or equality. It requires an argument demonstrating why biological definitions themselves violate those values. That argument is never made by the Human Rights Commission.
Instead, the HRC simply assumes that recognition of gender identity is itself a human right, and therefore legal definitions of sex must accommodate subjective identity. This is a classic example of the informal logical fallacy ‘question-begging’ which occurs when the conclusion to a question is built into the premise. The HRC submission never seriously entertains the obvious alternative that Parliament may define sex objectively while simultaneously protecting transgender people from discrimination under separate legal provisions. Indeed, that alternative possibility sits at the heart of many contemporary legal frameworks and at the core of my own submission. The United Kingdom Supreme Court’s decision in For Women Scotland, for example, expressly distinguished biological sex from protections afforded to transgender people under equality legislation. Whether one agrees with that judgment or not, it demonstrates that biological definitions and anti-discrimination protections are not mutually exclusive concepts. The HRC does not engage with this at all.
Closely related is the HRC’s persistent conflation of distinct concepts that are entirely different and should be carefully distinguished. Throughout the submission it moves interchangeably between sex, gender identity, gender expression, and sex characteristics, treating them as though they all collectively undermine the possibility of biological definitions. Yet these are fundamentally different ideas and concepts. Biological sex concerns reproductive organisation and this is what I have used to define sex in my own submission. Gender identity concerns an individual’s subjective understanding of themselves in relation to the sexes. Gender expression concerns stereotypes associated with the sexes in terms of behaviour, appearance, and presentation. Sex characteristics refer to physical traits associated with sexual development, that is genitals or breasts, for example. These concepts interact, but are not interchangeable. A person may possess atypical sex characteristics (sometimes called intersex or as having differences in sexual development) without identifying as transgender. A person may identify as transgender despite possessing entirely typical male or female biology. And, a person may reject stereotypes associated with their sex without questioning their biological sex at all.
By collapsing these separate concepts into a single category of “human diversity”, the HRC shifts the debate away from the narrow legal question before Parliament. The Bill concerns statutory definitions of “woman” and “man”. It is not an attempt to legislate hairstyles, personality, identity, clothing, mannerisms, or social roles. Yet the submission repeatedly broadens the discussion so that opposition to biological definitions appears synonymous with respect for all forms of diversity. This is a very deliberate conceptual equivocation intended to make an invalid conclusion appear logically sound.
The HRC compounds this through its treatment of biological sex itself. It argues that sex characteristics exist across a spectrum and therefore the rigid sex binary definitions fail to reflect biological reality. This is perhaps the weakest scientific argument in the submission. It simply substitutes one proposition for another. Nobody disputes that human sexual development is biologically complex. We understand that hormones often vary and chromosomes occasionally vary. Disorders and differences of sexual development exist, and secondary sex characteristics display considerable variation. However, none of this establishes that biological sex itself is a spectrum. There is no third sex. There are two sexes that contain internal variation, but are nonetheless very easy to define. We’ve been doing it forever.
Categories are not invalidated simply because difficult cases exist at their margins. Human beings have two lungs despite some being born with only one. Those born with one lung do not cease to be human. Mammals are all warm-blooded but individuals exist with impaired temperature regulation. There are countless examples of how the existence of variation within a category does not eliminate the category itself. Yet the HRC repeatedly treats biological complexity as though it dissolves the possibility of stable legal classification. The HRC’s submission writers never demonstrate why atypical developmental conditions should prevent Parliament from defining sex generally, nor do they explain why law should abandon objective categories simply because unusual cases require careful consideration from time to time.
The submission frequently replaces legal reasoning with emotionally loaded language. This is evident in its claim that the Bill “attempts to deny” transgender, non-binary, and intersex people a place in society. This is a remarkable assertion. It is emotionally manipulative and intended to coerce lawmakers into complying with their demands lest they be condemned as bigots or transphobes. But, the Bill does not criminalise transgender identity, remove citizenship, nor prohibit employment, healthcare, housing, voting, or participation in public life. It defines statutory terms in relation to observable reality and scientific consensus. Whether one agrees with those definitions or not, describing them as denying entire groups “a place in society” is plainly rhetorical.
There is an important distinction between arguing that legislation has symbolic consequences and asserting that it erases entire communities. The former is a legitimate policy argument while the latter dramatically overstates what the Bill actually does. Such language encourages readers to view disagreement over legal definitions as equivalent to social exclusion itself. It elevates an ordinary dispute about statutory interpretation into an existential moral conflict. That may be politically effective, but it is poor legal analysis. The HRC has let itself down immensely by engaging in this kind of behaviour.
The HRC’s treatment of the Bill’s practical effects reveals more inconsistency. At several points it argues that the legislation is unnecessary because relatively few New Zealand statutes actually use the words “man” and “woman”. The immediate legal consequences, it accepts, may therefore be limited. Yet moments later it argues that the Bill nonetheless carries enormous normative power because legislation influences institutional behaviour, public policy, and social attitudes. Suddenly its indirect effects become central.
Both cannot be true so this creates an obvious asymmetry. When considering the Bill’s benefits, indirect institutional consequences are ignored in favour of its limited direct legal operation. When considering alleged harms, indirect symbolic consequences suddenly become paramount. The HRC cannot have it both ways. Either legislation produces significant institutional and interpretive effects beyond its literal wording or it does not. If symbolic and institutional consequences matter for assessing harm, they must equally matter when assessing why Parliament might legitimately seek greater clarity about sex-based language across government agencies and public bodies.
It is difficult to conclude anything other than that HRC’s objection is philosophical and ideological rather than legal given its conclusion that no amendments could ever repair the Bill. It must be thrown out entirely, it argues. This is difficult to reconcile with the substance of its own criticisms. The HRC identifies drafting problems relating to age, legal certainty, and statutory interaction. These are the sorts of issues legislation is routinely amended to address. If defining “adult” creates anomalies, amend the definition. If application clauses are unclear, strengthen them. And if interaction with the Human Rights Act requires clarification, draft consequential amendments.
Indeed, that is exactly what many supporters of the Bill, including my own submission, have proposed. I have suggested the Bill is amended to define “sex” itself first, for example, and that it could preserve existing anti-discrimination protections while distinguishing them from biological sex.
Instead, the HRC dismisses the prospect of amendment almost immediately. This suggests that its objection is not really to the drafting but to the underlying principle that Parliament may define biological sex at all. That is a political position that can be argued, but what is less convincing is presenting it as though no conceivable drafting exercise could reconcile biological definitions with human rights law.
The submission similarly overstates the authority of international human rights law. Throughout the document, recommendations from UN committees, treaty bodies, and expert groups are presented as though they have jurisdiction to prevent the legal definitions being set by New Zealand’s Parliament. But in our system Parliament is supreme and we are a sovereign nation. International recommendations concerning protection from discrimination do not automatically determine how domestic legislation should define sex-based legal terms. Human rights law protects numerous characteristics simultaneously, including race, religion, disability, age, sex, and sexual orientation. Recognising one protected characteristic does not necessarily redefine another.
The HRC therefore moves too quickly from the proposition that transgender people should enjoy protection from discrimination, a proposition few would dispute, to the conclusion that Parliament may not define “woman”, “man” or “sex” biologically. The latter does not logically follow from the former.
Its discussion of Te Tiriti o Waitangi illustrates a similar tendency towards expansive constitutional claims unsupported by equally expansive reasoning. The HRC argues that because diverse gender identities existed historically within Māori society (this is contested in any case), and because identity relates to tino rangatiratanga, legislation defining biological sex potentially conflicts with Treaty guarantees. This argument stretches remarkably far. If accepted, it implies that almost any legislation concerning identity could require prior Māori consent because identity itself forms part of self-determination.
Such a proposition is constitutionally significant, yet the submission offers almost no limiting principle. It never explains where Parliament’s ordinary legislative competence begins and ends if every statutory definition touching identity potentially engages collective Treaty rights. Rather than carefully defining the constitutional boundaries of the argument, the HRC simply assumes them.
Perhaps most revealing is the submission’s treatment of women’s safety. It dismisses the Bill on the basis that statutory definitions will not physically prevent violent offenders entering women’s spaces or committing violent crime. That is true, but it largely answers an argument few supporters actually make. The principal rationale for biological definitions has never been that definitions themselves stop criminals. Rather, it is that legal rights, exemptions, safeguarding policies, sporting categories, prison management, data collection, and privacy provisions require clear criteria identifying the relevant categories.
The HRC’s reasoning is additionally weak because it applies a standard that almost no law could satisfy. Laws rarely prevent determined people from breaking them. The criminal prohibition on murder does not stop every murder. The purpose of law is not to make undesirable conduct impossible, but to establish clear legal boundaries, define rights and obligations, guide institutional decision making, and provide a framework for resolving disputes when those boundaries are crossed.
That is precisely what this Bill seeks to do. It is not a crime prevention measure. Its purpose is to clarify the legal meaning of fundamental sex-based terms wherever Parliament has chosen to organise rights or obligations around biological sex. Whether one ultimately agrees with those definitions is a separate question, but criticising the Bill because it will not physically stop a violent man entering a women’s changing room is rather like criticising burglary laws because determined burglars still break into houses. The objection mistakes the function of legislation.
Indeed, the existence of criminal sanctions against trespass, assault, or sexual offending has never been regarded as a reason to abandon rules governing access to prisons, changing rooms, hospital wards, or women’s refuges. Institutions routinely establish lawful boundaries despite knowing those boundaries may sometimes be breached. The law distinguishes between who is entitled to enter and those who enter unlawfully. That distinction matters because it provides clarity for those administering the law and consequences for those who violate it.
The HRC therefore addresses a substantially weaker version of the argument than the one actually advanced. It asks whether definitions reduce crime rather than whether legal categories require coherent legal boundaries.
Finally, the submission repeatedly insists that there is no need to define “woman” and “man” because their ordinary meaning already functions perfectly well in law. This is likely its most internally inconsistent claim. If those words possess a stable ordinary meaning, then codifying that meaning should be totally uncontroversial. If, however, codifying biological definitions is said to cause widespread exclusion, then the dispute cannot really be about preserving the ordinary meaning at all. It is about replacing that meaning with something broader. The HRC oscillates between claiming that the Bill is unnecessary because everyone already understands these terms, and claiming that defining them biologically would dramatically alter the legal landscape. Again, both propositions cannot coexist.
Ultimately, the HRC’s submission succeeds far better as a statement of values than as a piece of legal reasoning. It is rich in language about dignity, belonging, inclusion, and respect. Those are important values, and no serious participant in this debate would deny their importance. Yet good intentions are not a substitute for careful analysis. Parliament is not being asked whether transgender people deserve dignity. It is being asked whether legislation should contain objective definitions of sex-based terms. That question requires engagement with statutory interpretation, legislative coherence, biological classification, and competing rights. Too often, the HRC bypasses those difficult questions altogether.
The irony is that the submission’s strongest criticism of the Bill concerns an entirely technical drafting issue. Its discussion of the unintended age discrimination created by defining “woman” and “man” as “adult” is careful, concrete and persuasive. That illustrates what rigorous legal analysis looks like. Unfortunately, much of the remainder of the submission abandons that discipline in favour of moral certainty. Human rights deserve better than arguments that assume their own conclusions.
Taken as a whole, the HRC’s submission represents a profound failure to discharge the role Parliament has entrusted to it. The Human Rights Commission exists to provide independent, rigorous, and impartial advice on whether proposed legislation is consistent with New Zealand’s human rights obligations. It is not a political advocacy organisation, nor is it a vehicle for advancing contested ideological conceptions of identity under the banner of human rights. Yet throughout this submission the HRC repeatedly substitutes legal analysis with moral assertion, treats contested propositions as settled doctrine, elevates symbolic claims over legal substance, and hyperbolises a modest interpretive Bill into an existential threat to entire communities. It does not simply argue that Parliament should reject this legislation; it implicitly redefines what human rights require in order to reach that conclusion. In doing so, it abandons the intellectual neutrality that gives a national human rights institution its legitimacy.
People can disagree about whether Parliament should define “woman”, “man”, and “sex” in biological terms. What is far more difficult to defend is a statutory human rights body presenting one side of that philosophical debate as though it were the only position compatible with human rights themselves. An HRC genuinely committed to protecting the rights of all New Zealanders would have grappled seriously with competing rights and interests, acknowledged alternative legal frameworks, tested the proportionality of different approaches, and engaged constructively with amendments capable of reconciling biological definitions with protections against discrimination. Instead, the HRC chose advocacy for one group over analysis.
That is deeply concerning because public confidence in the Human Rights Commission depends not upon people agreeing with every conclusion it reaches, but upon confidence that it approaches difficult questions fairly, objectively and without political predisposition. This submission does the opposite. It reads less like the work of an independent constitutional body and more like the position paper of an activist organisation committed to one side of a highly contested public debate. In my view, that represents a negligent discharge of its statutory responsibilities. By failing to impartially weigh the rights and interests of all New Zealanders, including those who rely upon clear sex-based legal protections, the HRC risks becoming discriminatory in the very sphere where it exists to prevent discrimination. If trust in the Human Rights Commission has declined in recent years, submissions of this nature help explain why.
Please let me know if you are less interested in this kind of writing. I know those who feel strongly about this Bill will be pleased I shared this, but I am not sure there is much wider interest in analysis of this kind. If it is not something a lot of you are interested in I will find a different place for this kind of work in the future. Thanks for bearing with me!
This is an excellent analysis Ani. Being captured by an ideology, as the HRC has so clearly been, obviously weakens the ability to reason soundly and make strong arguments. I'm happy you've posted this in Thought Crimes, but I confess to being vitally interested in the progress of the Definitions Bill. Also happy to think of it going to the MP's engaging with the Bill. Thank you Ani.
From the HRC submission:
"There's no need to define ‘man’ and ‘woman’ in the law because the law already works well using the usual meaning of those words".
Hmmm, define "usual"!?
In trying to resolve the issue with this statement, all the HRC are actually doing (rather successfully) is re-articulating the problem itself.