Friday, November 11, 2005

Licensing discrimination

Why should we oppose the Marriage (Gender Clarification) Amendment Bill? Quite apart from its attempt to define marriage as being exclusively heterosexual, there is another reason: the bill would effectively overturn the Human Rights Act's provisions forbidding discrimination on the basis of marital and family status and licence active discrimination by private individuals in favour of (their interpretation of) marriage.

Clause 7 of the bill amends s19 of the New Zealand Bill of Rights Act 1990 to note that

Measures taken in good faith for the purpose of assisting or advancing marriage do not constitute discrimination.

In accordance with section 7 of the Bill of Rights Act, the Attorney-General notified Parliament [PDF] that this clause would violate the BORA, as it

distinguishes between persons who are married and those in other types of relationships (such as those in a civil union or de facto relationship). This distinction is disadvantageous on the grounds of marital status and sexual orientation (as same sex couples are unable to get married) as it affords protection to future legislation, policy or practice that may be discriminatory vis-a-vis those groups.

(Emphasis added)

As can be seen from this press release, this was clearly Larry Baldock's purpose in introducing the bill: to allow the government to "strengthen and support" marriage by engaging in outright discriminatory behaviour. This is bad enough; the government should not be attempting to privilege any particular social arrangements, as those choices are rightly the domain of individuals - but it gets worse. The clause wouldn't just licence discrimination by the government, but by private individuals as well. At present, such disrimination is prohibited under sections 21(1)(b) and 21(1)(l)(iii) of the Human Rights Act. But that Act - as with every other Act in New Zealand law - must be interpreted through the lens of the Bill of Rights Act. Which would say that discrimination on the basis of marital and family status would be allowed, at least to the extent that it can be argued that such discrimination is a "good faith" effort to "advance" marriage...

Think of the abuses that these clauses were supposed to end. What arguments did people use to justify refusing to rent accommodation to unmarried couples? That by showing social disapproval, they were providing an incentive for marriage. What arguments did employers use in the 50's when refusing to employ married women? That they should be "spending more time with their families" - i.e. that denying them a job would somehow advance marriage. This clause would give prima facie legal protection to such discrimination. And that's something I don't think even the social conservatives who support a heterosexual definition of marriage really want to return to.


As distateful as I find the sorts of discrimination you outline, and as much as I agree that "government should not be attempting to privilege any particular social arrangements", is the issue of 'private' discrimination a tricky one for liberals, because the 'right to discriminate according to my beliefs/prejudices' is also within the domain of individuals?

Of course, to the extent that private discrimination can foreclose other individuals' options, and diminish their practical freedom to do as they wish, is is problematic: but perhaps there's a liberty interest on both sides of the equation.

I am reminded of a Canadian MP a few years back who said that if the customers at his store didn't like black employees, he would 'keep them out the back.' A useful reminder that this may not be just about private landlords, but also about businesses with public faces.

Posted by dc_red : 11/11/2005 09:49:00 AM

oooh! Excellent! Expect to be contacted by Gaynz.Com rather shortly...


Posted by Anonymous : 11/11/2005 10:46:00 AM

"...government should not be attempting to privilege any particular social arrangements..."

Why not? Certainly certain social arrangements are a risk factor for the children living in them.

From PEDIATRICS Vol. 116 No. 5 November 2005, pp. e687-e693

"Young children who reside in households with unrelated adults are at exceptionally high risk for inflicted-injury death. Most perpetrators are male, and most are residents of the decedent child's household at the time of injury."

It seems reasonable to me that promoting social arrangements that have the least amount of risk for the vulnerable is sensible social policy. Why object to this? I think your idealism is misplaced.

Posted by Muerk : 11/11/2005 10:59:00 AM

DC_Red: I don't think it's a tricky issue at all. Protecting the freedom of others is a perfectly acceptable justification for limiting freedom, and that is exactly what anti-discrimination legislation is all about. See here and here for more details.

I'll also point out that, like Franks' proposed amendment to the HRA, this is utterly one-sided: it allows people to discriminate in favour of marriage, but not against it. Even if you are a classical liberal who believes anti-discrimination legislation is unjustified, the lack of a level playing field is a good reason to oppose it.

Posted by Idiot/Savant : 11/11/2005 11:10:00 AM

"like Franks' proposed amendment to the HRA, this is utterly one-sided: it allows people to discriminate in favour of marriage, but not against it."

Excellent point, hadn't thought of it like that. A rough parallel, perhaps, with the uneven playing field anticipated by the blasphemous libel protection for the state's preferred religion?

Posted by dc_red : 11/11/2005 11:21:00 AM

Muerk: there's also good evidence that Catholicism is bad for children - but I don't think that's any reason for banning it. There are some areas which the state simply has no business dictating people's choices in - and who you choose to spend your life with and how is one of them.

Posted by Idiot/Savant : 11/11/2005 11:22:00 AM

DC_Red: a very good analogy. And I think that's what we should focus on when lobbying people like Rodney Hide about this clause.

Posted by Idiot/Savant : 11/11/2005 11:24:00 AM


I would also recommend you to Ellen Perrin et als Technical Report on Same-Sex Parenting,
as well as Judith Stacey and Tim Biblarz' "How Does the Sexual Orientation of Parents Matter?"
American Sociological Review
(April 2001)58:2: 159-183.

It clarifies the current status of evidence-based research into the
benefits of same-sex parenting.

Craig Y.

Posted by Anonymous : 11/11/2005 02:32:00 PM

A fuller reading of the abstract Muerk quotes states that:
"Perpetrators were identified in 132 (88.6%) of the cases. The majority of known perpetrators were male (71.2%), and most were the child's father (34.9%) or the boyfriend of the child's mother (24.2%)."
While yes, as stated in the next sentence, "In households with unrelated adults, most perpetrators (83.9%) were the unrelated adult household member, and only 2 (6.5%) perpetrators were the biological parent of the child.", the risk is higher with unrelated adults, the largest percentage of perpetrators identified was biological fathers.
Extreme interpretation of these stats would indicate that the Government should ban child contact with males.
A more sensible option (overall) would be to encourage and support stable loving relationships of all kinds. I would think that this does a far better job of encouraging social arrangements to protecting the vulnerable - children or otherwise.

Posted by Anonymous : 11/11/2005 04:55:00 PM

Actually, scanning through that abstract, it may be fairly wise to make sure both your parents are female, given that 71.2 % of the perpetrators were male, and most of them were the childs father or the mother's boyfriend.

Go the Lesbian Parents, sell more turkey basters, we obviously need more of them for child safety. I'll just watch.

Posted by Weekend_Viking : 11/11/2005 05:18:00 PM

Viking: well as the nominal (in my case known) father of a couple of 'turkey baster' babies I have to tell you "it ain't done that way", and "no you don't get to watch" - in our case (in California) a doctor has to get involved for legal reasons (otherwise I'd be on the hook for child support, and would have all sorts of rights over the child I have no real business having).

On the other hand for both families it's been a wonderfull thing - living so far away from NZ my own ('legal') kids have gained 'cousins' a bunch of 'aunts' a couple of extra sets of 'grandparents' - in actual fact we got a whole extra family which can't possibly be a bad thing. In fact as my wife put it (it was her idea) "you know most people only get one time in their life when they get to choose their family - when they get married - we got lucky and had a second".

Posted by Anonymous : 11/11/2005 06:23:00 PM

I/S. good post, well done for highlighting this - but I dont think you have it entirely correct in terms of how the discrimination aspect of the bill be played out in reality. I don't consider it will effectively overturn the HRA's discrimination provisions.

I am going to do a post on my blog in the next day or so that will no doubt interest you.

Also Craig Young, perhaps you could get on message. Same sex parenting and marriage are not linked to the degree that you are promoting.

Posted by Swimming : 11/11/2005 06:33:00 PM

Anonymous from California: I know the turkey baster is apocryphal, I know I don't get to watch and I also know the legal ramifications of sperm donation, I think you just failed your grok sarcasm roll :-)

Posted by Weekend_Viking : 11/11/2005 06:46:00 PM

Hey, if lesbian mum and partner reduces child death, then actually, that's just fine by me. Lesbians away...

As for promoting stable families, I couldn't agree more with that. It's just that marriage so far, _is_ the most stable family arrangement, even with divorce being available you're more likely to stay together if married than if co-habiting. Civil unions are probably as stable as marriage I guess, I assume that will play out over time to show that.

There's something in that standing up and publically contracting your relationship that seems to promote stability. Personally I think that you should be allowed to discriminate in favor of both marriage and CU's. Or rather promote that public contract of a relationship.

I'd much rather see kids in a safe, happy environment with a couple of civil unioned loving mums than being babysat by an aggressive, heterosexual boyfriend who only turned up last week. Wouldn't you?

"There are some areas which the state simply has no business dictating people's choices in - and who you choose to spend your life with and how is one of them."

So why is it illegal to marry/CU your sister or your uncle? I know someone who had a long term relationship with their father, at one point she thought she was pregnant to him, yet the State wouldn't allow them to marry or CU. And yes, she was an adult. How would you respond to this situation?

Posted by Muerk : 11/11/2005 07:48:00 PM

Viking - I know you were joking and I was playing along a little - but it was a good intro to explain why in our situation a same-sex family has greatly enhanced our family life - large extended families are going away as we all have fewer and fewer kids - we've found a way to grow ours.

By the way, I know it's a legal technicality but in California (and maybe in NZ too) it's not illegal to BE in a same-sex marriage, just to GET married if you are of the same sex ... I know this is true because the nice couple down the street where I used to live weren't required to get divorced when he became a she (they now have a lovely little 5 yr old girl [conceived AFTER] - families come in all shapes and sizes and ways these days).

Anyone know - are transgendered people required to get divorced in NZ? if not there's a great legal precident waiting for someone to use ....

Posted by Anonymous : 11/11/2005 11:45:00 PM

"Anyone know - are transgendered people required to get divorced in NZ? if not there's a great legal precident waiting for someone to use ...."

Yup, the marriage is annulled.

Posted by Muerk : 11/12/2005 08:50:00 AM


I think someone raised the issue of same-sex parenting, and the Christian Right has been trying to deal with the issue of LGBT relationship equality through raising allegedly unstable same-sex parenting arrangements as an


As for transgender marriage, it
has been available for post-op
transpeople for the last eleven years, as they are recognised as their reassigned gender for the
purposes of the Marriage Act.

Therefore yes, I imagine the same would apply in terms of a divorce
with an opposite sex partner, or if one were in a civil union with a same-sex partner...

Posted by Anonymous : 11/12/2005 10:52:00 AM