Law Commission proposes explicit discrimination protection for transgender, non-binary and intersex people

The Law Commission has just released a paper proposing to amend the Human Rights Act to explicitly prohibit discrimination against people who are transgender, non-binary or intersex.

The Act currently prohibits discrimination on the grounds of “sex”, and a Crown Law opinion from 2006 concluded that this includes discrimination based on a person’s gender identity. However, there hasn’t been any court or tribunal decision in the nearly 20 years since that opinion, leaving the position uncertain.

The Law Commission’s preliminary view is that “legislative amendment is necessary and desirable to ensure adequate protection from discrimination for people who are transgender or non-binary or who have an innate variation of sex characteristics”. It has called for submissions on its proposed amendment, which close on 5 September 2024.

It remains to be seen whether a legislative amendment would be supported by the current Parliament. Georgina Beyer first proposed an amendment to the Human Rights Act to add “gender identity” as a prohibited ground of discrimination in 2004. Louise Wall again proposed an amendment in 2014. The Labour government proposed yet another amendment in 2021. And Elizabeth Kerekere then proposed another amendment in 2023.

Transgender, non-binary and intersex people should not be forced to rely on an old and uncertain Crown Law opinion, or the vagaries of Parliamentary process, in order to be free from discrimination. It’s time that the law clearly protects transgender, non-binary and intersex people against discrimination.