“It takes a special sort of person to use the disabled toilets”.  This was a comment directed at me at a recent Fashion Week event in Auckland.  I considered it unwise to respond at the time, but I am non-binary and these were the only unisex bathrooms.

I could have engaged in a debate as to whether the toilet was a disabled, or an accessible, one.  And insofar as it may be regarded as accessible, who should be entitled to access it?

The fact is I do not feel comfortable using the Women’s bathrooms and would not use the Men’s, so what should someone like me do?  This difficulty is particularly pronounced at public swimming pools where there are often no cubicles and it is essentially a free for all.

It is also a problem in many workplaces where there are only two choices of bathroom facilities, and no accommodation for people who do not fit comfortably within either.

As a society it appears that we have made significant progress in recognising the rights and different needs of LGBTQIA+ people in recent years, and on the face of it, we have become quite “woke”.  But this is often still window dressing.  There remains a lack of genuine understanding, and in some cases, deep seated prejudice directed towards members of the rainbow community.  Some of this is conscious, some of it is not.  It is ingrained in centuries of discrimination and stereotyped views about people like us, which are difficult to shift overnight.

In 1986 the Homosexual Law Reform Act was a long-awaited step in the right direction.  But it is one thing to know that you will not be charged with a crime for engaging in gay sexual activity, and quite another to enjoy the same rights and protections as other people.

The Human Rights Act was then amended in 1994 to extend the prohibited grounds of discrimination to “sex” and “sexual orientation”.  In an employment context this means that it is unlawful to refuse or omit to employ, to offer less favourable terms and conditions of employment, or to dismiss someone, based on these grounds.  However the protections do not specifically extend to trans, intersex or non-binary people.

A private member’s Bill has recently been tabled which would make discrimination on the grounds of gender identity or expression, or variations of sex characteristics, unlawful.  The Human Rights (Prohibition of Discrimination on Grounds of Gender Identity or Expression, and Variations of Sex Characteristics) Amendment Bill defines “gender identity or expression” as “the self-identified gender, name, pronoun, appearance, mannerisms or other gender related characteristics of a person, with or without regard to the person’s assigned sex at birth”.

The Explanatory Note to the Bill also explains that it is intended to contribute to redressing the impact colonisation has had on Māori; “Historically, Te Ao Māori accepted those with diverse genders and sexualities as a normal part of society and acknowledged people with variations of sex characteristics as being sent to teach them.  Colonisation resulted in suppression, criminalisation and pathologizing of those people and resulted in takatapui often not being accepted today.”

The Bill is not a panacea because recruitment and employment related decisions are often coloured by the decision maker’s personal preferences and subconscious bias, and it can be difficult to prove discrimination when it occurs.  The usual refrain that “you were not the best candidate for the position” is difficult to look behind in the absence of an obligation to provide any further explanation.

However, should this Bill be passed, employers will be able to be held to account to justify their decision making where on paper a LGBTQIA+ person appears to be the best candidate or has suffered some other form of discrimination in the workplace.

It will also be incumbent upon employers to make reasonable accommodations for all LGBTQIA+ people within workplaces.  Without wanting to undermine the importance of this Bill and what it seeks to achieve, can I suggest that a starting point may be to ensure that there are suitable bathroom facilities for everyone.

Interestingly, the Human Rights Act currently provides that it is unlawful to refuse a person the use of any facilities in a place or vehicle which other members of the public are entitled to use.  However there is an exception to this where the maintenance of separate facilities for each sex is on the grounds of public decency or public safety. 

The Bill does not currently address what this means in the context of trans, intersex or non-binary people, but it is one of a number of real issues for this community which need to be considered to ensure that the Bill is not just symbolic.

This article was originally published in The Post