From Submission by Renee Gerlich:
To ensure that the BDMRRA does not breach Section 21(1a) of the Human Rights Act, section 19 of the Bill of Rights Act and CEDAW, I request that Section 28 of the BDMRRA be amended to include a necessary preamble: a definition of sex and a definition of gender with which the rest of the Act be made consistent. I suggest that these definitions are made consistent with the HRA and CEDAW: namely, that sex be defined as biological: persons can be either male or female according to standard definitions (chromosomes, gonads, genitals and secondary sex characteristics). I support the maintenance of an “indeterminate” provision for intersex persons under section 28 of the current Act.
Any definition of sex proposed to underpin the BDMRRA that challenges commonplace understandings of “sex” as biological, as well as definitions drawn on to prevent sex discrimination in the HRA and CEDAW, must not be legislated for without a full public consultation. This consultation should include every single service that will be affected by the institutionalisation of definitions of sex and gender that are not commonplace. Consultation must be carried out with rape crisis shelters, women’s refuges, sports teams, Corrections and within women’s prisons, any public facilities that include bathrooms and changing rooms, women in women’s representative groups and positions, all-girls schools, and other groups. I also propose that without the addition of a preamble clearly defining sex and gender, no amendments can be made to the BDMRRA. The BDMRRA is already at odds with Section 21(1a) of the HRA and CEDAW, and any changes made, if not underpinned by clear definitions, will remain weak and problematic at best and will become circular, illogical and increase harm to women at worst.