The Legislation (Definitions of Woman and Man) Amendment Bill purports to define “a clear and biologically grounded meaning of “woman” and “man””, but the legislation doesn’t appear to manage this very well at all. The Bill is very short, and the definitions seem not only reductive, but also practically useless.
For example, the following two definitions are given for woman and female (and are mirrored for man/male):
woman means an adult human biological female
female means a human biological female
A “female” in this definition is defined as someone who is biologically female, which is a case of circular reasoning. Legislation should always aim to be clear, concise and unambiguous, but in this instance it’s confusing and self-referential.
We would recommend that, if a biological definition of woman or female is needed (and we’re not convinced that it is), the select committee first consults with a range of biologists, health experts and legal advisers, to ensure that the definitions are both accurate and useful for legislation. The current definitions seem to be neither of these.
The general policy statement of this Bill says that it aims to “uphold legal certainty”, “protect the integrity of sex-based rights”, and “ensure that language in law reflects biological reality”. From our reading of the Bill, it does none of these.
Legal Certainty
When it comes to legal certainty, this Bill is likely to offer the opposite – confusion and uncertainty.
For example, the Age of Majority Act says that, unless otherwise stated, adulthood is reached at 20 years old in our country. Is the government sure that if, as a consequence of this Bill, they define a woman as someone 20 years or older, every piece of legislation which uses the word “woman” makes sense under this new legal legislation? From what we’ve seen in other submissions, it appears that there are several instances where young women, between 16 and 19, will see their rights needlessly curtailed.
The reductive nature of these definitions is likely to have ripple effects across much of New Zealand’s legislation, and it seems unlikely that the authors of this piece of legislation have considered any of these repercussions.
Protecting Sex-based Rights
For protecting sex-based rights, we consider that New Zealand already has appropriate legislation (e.g. the Human Rights Act) to offer protection where it’s needed, and that this new legislation is likely to make things worse by tying the court’s hands and making it harder for them to make nuanced case-by-case decisions.
In addition, the exclusion of thousands of intersex people in New Zealand from these definitions means that a segment of our country that has historically been overlooked will likely have even fewer rights as a result of this legislation.
Reflecting Biological Reality
Regarding the idea that this Bill reflects biological reality and provides a “clear and biologically grounded meaning”, this is where this piece of legislation fails badly. From a skeptical and scientific perspective, the Bill does not reflect biological reality at all; instead it reflects a reductive oversimplification of human biology, one that ignores the last fifty years of genetic and endocrine research.
We could lecture the select committee on what an actual science-based view of biological sex looks like, but this material has already been written and made publicly available by others who do a good job of explaining the complexities involved. We would recommend that MPs read some evidence-based articles on the topic, such as this one by Dr Steven Novella in the US:
The idea that the government might institute some kind of test to assess someone’s biological sex (an idea which has been publicly floated), seems fraught with danger, and likely to do much more harm than good.
Recommendation
Given these definitions’ lack of utility, their scientific inaccuracy, and their confusing recursive language, we do have to wonder whether there is an ideological driving force behind this Bill, rather than the stated purposes of offering legal certainty, protecting sex-based rights, and reflecting biological reality – purposes that this Bill is ill-equipped to deliver.
As such, we recommend the Bill not proceed.