A human rights clash inside a Wellington courtroom seeks to answer the question: what counts as discrimination within the rainbow community?
In front of the Human Rights Review Tribunal (HRRT, chaired by Sarah Eyre) at Wellington’s district court last week, a case against the board of Wellington Pride Festival brought forward by a trans-exclusionary advocacy group Lesbian Action for Visibility Aotearoa (Lava) seeks to answer whether barring an organisation based on transphobic views impedes on human rights.
In the process, the hearing contends with the bigger issue the courts are slowly addressing: how are trans lives examined in the courtroom, and how do our laws interpret sex and gender identity? And, within the rainbow community itself, how much protection should be afforded to trans-exclusionary views?
Wow, rainbow on rainbow crime? How did we get here?
Let’s start back in 1988, when Lava was formed to keep lesbian rights in the public eye after an amendment to the Crime Act decriminalised sex between men of age. By 1993, their campaigning led to specific protection for lesbians under the Human Rights Act (HRA), then following a years-long hiatus, the group reformed in 2020 with the goal to “fight gender ideology”. Its website homepage warns of young lesbians being “pressured to transition” and the group’s desire for “lesbian-only spaces”.
Lava’s Hilary Oxley speaks to supporters in 2024. (Image: Supplied)
The tension with Pride began after Lava applied for a stall space at Pride’s Out in The City event 2021. The proposed stall was for a map of “Wellington sites of historical, political, and social significance to lesbians”. A complaint was made to the festival board about Lava’s trans-exclusionary views, including photos of the group protesting outside the Ministry for Women, with signs reading “female is not a feeling” and “woman = adult human female”, a common anti-trans refrain.
Lava claims their application was accepted and then cancelled, while Pride co-chair Tasmin Prichard told the Herald last year that Lava’s application was never accepted in the first place.
At the event itself (sans Lava stall), Lava demonstrators displayed the map outside of the venue and were met with trans ally protestors, the latter of whom were supported by Pride.
The map of Wellington’s ‘herstory’ of the lesbian rights movement which Lava wanted to display at Out in The City. (Image: Supplied)
In December that year, Lava and Wellington Pride engaged in mediation in front of the Human Rights Commission. After failing to reach deliberation, Lava filed a human rights case against Wellington Pride Festival, led by claimants Hilary Oxley and Margaret Curnow – with the HRRT in 2022, on the basis that they had been discriminated against.
As the HRRT takes around two years to hear claims, Lava’s only made it to the court in July. The group has so far raised over $92,000 to fund its case.
So it’s a case of is it unjust to discriminate against people you believe are discriminating against people?
Well, kinda, yeah. The Spinoff understands that in a preliminary hearing in July, the HRRT heard in Lava’s opening submission (delivered by lawyer Nicolette Levy KC, who has previously represented Speak Up for Women) that the group was “devastated” by Pride’s objection to their “rational and reasonable concerns” about gender ideology. They claim that being barred from the event due to their “political beliefs” is a ground of discrimination under the HRA, but Pride has pointed to section 73 of the Act – they discriminated against Lava in good faith, to protect their transgender community members.
Levy has argued that while in 2015, “saying that men cannot be women was unremarkable”, by 2021, “the political momentum was with trans people”. There should have been “reasonable expectation” that members of the queer community with opposing views to trans people would attend the event, the HRRT heard, and the “comfort and confidence” of Pride to cancel Lava’s stall was inconsistent with s 73.
A poster shared to Lava’s Facebook. (Image: Supplied)
In Pride’s opening submission, lawyer Victoria Casey KC told the HRRT that Lava’s stance was “standard playbook in culture war campaigns”, and that their claim of trans existence being an “ideology” was “repulsive”. Casey argued that the HRA cannot give any protection to “political opinions” which are discriminatory, as is the case with antisemitic, racist and sexist views.
“This is not a case of ‘good on both sides,’” Casey said. “Both views cannot co-exist: either trans people exist and have a place in our society and are to be recognised for who they are, or they don’t.”
How is this being argued on the witness stand?
The Spinoff understands Lava’s expert evidence included a statement from Prue Hyman (of the Women’s Rights Party), who helped Lava pack up their placards after Out in The City and brandished a pole at protestors. Hyman said Lava’s stall would have educated eventgoers on the “herstory of lesbian activities in Wellington”, and instead they were “abused” by protestors, who should not have been genuinely shocked by her “mock” response with the pole.
Dr Robyn Watts, a clinical psychologist who specialises in LGBT+ issues, gave evidence for Pride. There was a tense back and forth between Levy and Watts, when the lawyer asked if there was “anything worse” in terms of anti-trans rhetoric than the slogan “woman = adult human female”. Watts refused multiple times to repeat or write down what she described as “slurs” to the court. There are “false claims” of trans people being “mentally ill, deluded, fetishist,” Watts said – “I think those words are harmful.”
Obstetrician and gynaecologist Dr Edward Hyde also provided evidence for Pride, and told the HRRT that “biology is more complex than binaries”. The number of those whose chromosomes do not complement their self-congruence of sex are “a small but significant minority of people, and a lot larger than has historically been appreciated”.
When cross-examined by Levy, Hyde was pressed about the use of changing rooms at his place of work, Hutt Hospital, and whether a woman would be able to say to a “trans-identifying man” that they shouldn’t be using the room. After back and forth over the use of the phrase “trans-identifying man”, Casey told the HRRT panel that Levy was “hectoring” Hyde into talking about HR processes.
Later, Pride witness and clinical psychologist Ilana Seagar van Dyke, under cross-examination by Levy, was asked whether she would be comfortable referring to a “trans-identifying man” who had raped someone as a “man”. Would a clinical psychologist’s code of ethics in using gender affirming language still apply, Levy asked, even if the victim was female?
It was a nuanced situation, Seagar van Dyke replied, and the use of gender affirming language would be the least important part of that conversation. “I would use other language,” Seagar van Dyke said. “Like ‘the rapist’.”
Slurs? Changing rooms? Rape? Hang on, what’s that got to do with a festival stall?
Good question. A fair chunk of this case has sought to define how the courts recognise women, with Lava’s case driving an emphasis on biological sex as the be all, end all to gender identity. Questions such as “do you agree that the only way to be female is to be born a female?” have been common from Levy in her cross-examinations, as the definition of “sex” within the Human Rights Act has not been defined.
A hīkoi for trans-healthcare in Wellington in March. (Photo: Lyric Waiwiri-Smith)
The HRA protects transgender people from discrimination but on Thursday, the Law Commission submitted a report to the Ministry of Justice regarding a review of protections for trans and non-binary people in the Act.
The Law Commission suggested 27 reforms to the Act, with the key advice being a reform to section 21 of the HRA being amended to specify that the Act covers discrimination faced by transgender or non-binary people, and those having “an innate variation of sex characteristics”.
So in order to determine whether or not a Pride festival can exclude those with trans-exclusionary views, they have to first determine if it’s discriminatory to have trans-exclusionary views?
It seems so. This battle has been going for nearly four years now and is not set to end any time soon. Hearings into Lava’s claim in front of the HRRT will resume September 15-19, then October 6-10.