The final article in the mothership of human rights law, the Universal Declaration of Human Rights, says that recognition of one human right—let’s say the right of transwomen to call themselves women (freedom of belief and expression)—can’t be used to deny another human right—say of those women who take a biological view of sex and wish to have female-only meetings (freedom of association).
All of which brings us round to Oxley and Curnow vs Wellington Pride Festival Inc., currently before the Human Rights Review Tribunal. It’s probably New Zealand’s most important ever case about discrimination on the basis of political opinion and, by extension, freedom of speech. The Tribunal hears alleged breaches of the Human Rights Act 2003. This case is big. It’s into the third of four weeks of witnesses, expert testimony, lawyer cross-examination and questions from Tribunal members.
Marg Curnow and Hilary Oxley are feminist lesbians and part of the group Lesbian Action for Visibility Aotearoa (LAVA) which advocates for more visibility of lesbians in society. They claim Wellington Pride Festival discriminated against them on the grounds of their political opinion, something not allowed in our Human Rights Act 1993 (HRA).
In 2021, after being alerted to LAVA’s opinions, Pride cancelled the group’s stall at the annual Out in the City event at the Michael Fowler Centre. At the stall, LAVA planned to show a map of Wellington lesbian history. Pride said that it was necessary to ban LAVA in order to “protect trans*, non-binary, intersex, and all gender minority attendees who we wanted to feel safe, accepted, and supported to be themselves by everyone at Out in the City.”
A main thrust of Pride’s defence is that LAVA’s views are so terrible that they fall outside the category of beliefs that the law intends to be protected from discrimination.
The issue is also not whether it’s the Pride view or the LAVA view that is correct. The key issue that the Tribunal must consider is whether those who share LAVA’s views on sex and gender are protected from discrimination on the basis of their political opinion.