Jan Rivers spoke at the Abortion Legislation Select Committee in favour of the bill, but in opposition to calls from other submitters to exchange the word ‘woman’ for ‘person’ throughout the bill. Jan is a supporter of the feminist group Speak Up For Women and has recently written an excellent article for Redline on New Zealand’s transgender health policy and its impact on children
Tena koutou katoa.
Select Committee Members, Officials.
Thank you for this opportunity to address you on the matter of the decriminalisation and modernisation of NZ’s abortion legislation.
My name is Jan Rivers. I am a community activist here on my own behalf. I work on the topic of the Public Good, especially on issues such as trade agreements, open government, the quality of the public sector and issues of democracy and sovereignty. I am also interested in raising awareness of where an issue of democracy could be decided by stealth and I’ll speak about that shortly.
- Safe free legal abortion
Firstly, I fully support the Bill as proposed. Women should have the right to choose. Clinicians should not suffer the risk of criminalisation. Abortion is a social and a medical matter. Women know what they are doing when they choose to end a pregnancy and it is often an extremely difficult decision with many emotional ramifications. But it is no-one’s business but the woman who is pregnant whether she wants to continue a pregnancy.
- Changing woman to person and women to people
The second issue that I want to address is the proposal that is being included in a number of submissions including the one by Young Labour that the wording of the bill be changed to replace woman / women with person or people in order to be “inclusive” and to “acknowledge transgender, gender diverse and non-binary people”. I advise strongly that you do not make that change. I believe that that would be a fundamental mistake and I would like to outline a number of reasons why.
a) Legislation should not proceed by stealth
The proposed change of woman to person and women to people would fall into exactly the same trap as the Births Deaths Marriages and Relationships Registration Bill did. A significant change that was not foreshadowed in the Bill presented to the Select Committee is also likely to excite strong opposition.
b) Legislation should encode material reality where it exists rather than a contested belief system.
Secondly sex is a fundamental material reality. Every person who has ever been pregnant in the history of the world has been a woman and (barring any technological changes well into the future) all will continue to be women. It goes without saying that no men have been mothers either. The basis of this is science and millions of years of history.
In contrast, Gender Ideology – or a belief in gender separate from sex – is rooted in post-modern theory which contains the idea that the only real truth is “situated” in identity. Gender trouble, written by post-modern philosopher Judith Butler, and Queer Theory authored by New Zealander Annamarie Jagosch proposed an oppositional politics that progresses by parody, performance and transgression, upending – “queering” – the meanings of words specifically with the intent of ensuring contestation and incoherence. Inherent in this ideology is the idea that woman and female are ‘unstable’ categories defying definition and are therefore available to anyone who claims the ‘identity’ of woman. So post-modernism is an ideology and a belief system that places truth and settled science about sex outside the shared arena of public debate. The instability of this worldview and its prioritisation of personal perspective is no basis for a legislative framework any more than it would be appropriate to have a fundamentalist religious framework determine our laws.
Legislation must work on the basis of shared societal understanding; it must be possible for the biological reality of sex to be acknowledged and for women to retain an ontological category that belongs to them.
I do not believe in gender identity. Encoding “people” in a law that applies only to women is to encode gender identity ideology in legislation. This of course has potentially chilling impacts for people who do not accept the concept of a gender identity. The proper place to protect people’s beliefs is in Human Rights law as our existing framework does for religious belief. And this should work for all people whether they believe in gender identity or not. It is far too dangerous to allow a law about a women’s issue to be the wedge for mandating a belief in gender identity.
Given some of the views you will have heard I reflect that this Select Committee above all has the unenviable role of holding the middle ground of rationality and science against the assaults of pre-modernism and post-modernism.
c) Legislation should be proportionate
Pregnant women who believe that they are not women are the people for whom this change is being promoted. How many are there? Anecdotal evidence from Australia has shown that the number is 27 women identifying as not female gave birth in Australia in 2018 (out of 315,000 or less than 1 in 10,000). In NZ’s case that would be 4 or 5 women. The number of such women requiring abortions even in a decade would be extremely small.
Legislators should be very cautious about encoding the wishes of the very few, no matter how supposedly disadvantaged, when this would cut across the rights of the very category that describes the many.
d) Legislation should not encode something whose long term ramifications are unclear. In other words laws should not be Trojan Horses.
To date the entire framework of inclusion of transgender people in rights legislation as the gender they feel themselves to be has happened without public consultation or even legislation. At no point has there been any opportunity to outline the concerns about encoding a belief in law in the public domain. Those who have tried have been roundly criticised even though the BDMRR bill was withdrawn. But even without legislation many changes have been made nonetheless.
Let me provide a little bit of historical context
The proposed Gender Identity Bill introduced by Georgina Beyer to include transgender human rights was withdrawn in 2008. In its place a Crown Law opinion was requested that made the case that transgender people are covered by the sex specific provisions of the Human Rights Act. The advice has been interpreted by the Human Rights Commission to mean that transgender women (biological men) have access to all women’s services, private spaces, counselling, refuges and prisons, other shared accommodation, prizes and awards, women’s dedicated roles on committees and in sports. But it is not law – it is a legal opinion that remains untested. But it is one that the Human Rights Commission has taken on wholesale.
The legal opinion appears to have set in train the decision to allow self-id for passports and for drivers’ licences which had previously required a change in birth certificate and an external assessment of whether someone had actually taken decisive action to change gender.
There was no law change needed for either of these initiatives which took place under the previous government. There was no public consultation, and neither the policy work nor the decision was announced by the relevant Ministers or their agencies. As far as I have been able to tell the only announcement took place when Human Rights Commission put out a retrospective press release relating to both changes. This was not democratic. In Scotland similar changes implemented with no democratic oversight have been roundly condemned as legislative overreach. The same is the case here in New Zealand. What has happened does not build trust or faith in our public institutions. It is poor service to the public to have been sidelined in this way from major important decisions. Even more worryingly if it is adopted it will be much easier to replace sex with gender in all other legislation.
If this change is made can we realistically expect no untoward ramifications? Should not women have been forewarned about something which would finally encode in law what has been just a legal opinion and which has already had a such a significant impact on their status and rights? Should legislation that will fundamentally change what it is to be a woman from material reality to belief not be subject to an impact assessment at the very least? In the UK the Future of Legal Gender project is a well-funded 4-year investigation into possible impacts of encoding gender into legislation and it is proving deeply divisive and problematic.
There have been big impacts in Canada, where gender is fully encoded into law, and even in the UK where this step has not been taken, crime committed by trans women including rape are being recorded as committed by women. On the other hand in the UK a proposed new gender self-id law has been put on hold indefinitely and in the UK and Canada recent case law has found firmly in favour of sex over gender. See Jessica Yaniv and Freddy McConnell. It appears that the injustice of doing otherwise seemed unconscionable.
e) Transgender rights have already trumped women’s rights in NZ.
As described above the Human Rights Commission already takes the view that gender self-identification rights trumps women’s rights to their own spaces and services. But it goes further. The Commission’s resources now say that instead of homosexuality being same sex attraction that “if you are one gender and you are attracted to that same gender you might be gay or lesbian.” This is not, I believe, accidental. It is an example of the Commission reinterpreting the law that protects gay and lesbian people to include gender identity. It means that men who ‘identify’ as women can call themselves lesbian and can expect to be covered by the provisions that protect sexual orientation. Strong anecdotal evidence suggests that the Commission’s staff are interpreting the law in this way and failing to act properly against reported cases of discrimination against lesbian women. In my opinion this is an issue which deserves a full investigation.
f) Legislators should not legislate because they are simply scared to speak about ideas they are uncomfortable with
It is worth pointing out that no MP spoke out against the self-id provisions and yet the bill was withdrawn. Why is that? Speaking up against transgender ideology comes at a cost. But surely legislators should be courageous and just as confident to address conflicts of rights – women’s rights and transgender rights – as they would seek to balance rights if they were considering tenancy or employment legislation.
As I hope you are seeing there are some strong and credible arguments against women being overlooked in this legislation. In conclusion, far too many questions remain as to the validity of replacing women with people for this proposed amendment to be encoded in our legislation.