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Flying Blind

Watching the beliefs of gender identity ideology becoming entrenched in our education system has led many parents and teachers to question what rights they have when faced with this ideology:

Can the school keep it a secret if my child adopts a transgender identity at school?

Could our family be investigated by Oranga Tamariki if we refuse to go along with social transitioning?

How can we protect our child from being taught transgender beliefs in classes right across the curriculum?

Would parents be informed if an opposite sex student was enrolled in a single-sex school and was using facilities with the other students?

What happens if a teacher refuses to teach that sex is on a spectrum?

Do students or staff have the right to ask others to use their preferred opposite sex or neo pronouns (as that is their protected belief) AND is there a matching right for students and staff to decline to do so (as that is their protected belief)?

We put these, and several other burning questions, into Official Information Act requests to various government bodies. We asked what legal advice had been sought before gender identity policies were implemented, and received these full and frank answers:

The Ministry of Education: The Ministry has not sought any legal advice in relation to the specific questions mentioned in your request and therefore your request has been refused under Section 18(e) of the Act.

The Ministry of Justice: The Ministry of Justice does not hold any of the information you have requested, therefore I must refuse your request under section 18(e) of the Act.

The Attorney-General: Crown Law has searched its records and can find no record of any legal advice on the above questions.

The Teaching Council: We have considered your request under the Official Information Act 1982 (OIA) and I can advise as follows. As we have neither sought or received any legal advice in relation to any of these questions, we must refuse your request under section 18(e) of the OIA - as the information sought does not exist.

You get the picture… Although there are obvious clashes between the Care of Children Act, the Privacy Act, the Human Rights Act, and the Bill of Rights, our education, welfare and justice systems have not asked even the most basic questions about the legal implications of gender ideology. Aotearoa is flying blindly into an ideological storm and a medical scandal with no-one in the pilot’s seat.

Parents’ rights are limited

We did get some proper, although bleak, answers from the Privacy Commissioner:

  • The Privacy Act 2020 doesn’t differentiate between children and adults – each individual has their own privacy rights, and accordingly, parents are not automatically allowed to receive information about their children.

  • Our Office considers matters on a case-by-case basis, but generally speaking, a trans* child has their own right to privacy. It’s up to them if they’re willing to share the information with a parent or guardian.

  • The Care of Children Act doesn’t override the child’s right to privacy. Parents and guardians can still be informed about their child’s care and education, without needing to be informed of a trans* child’s identity before they are willing or able to share that with them.

  • Under the Privacy Act, an individual can only request their personal information (subject to authorising someone else to do so on their behalf), so there is no right to be ‘informed’ of any student’s sex.

This advice concurs with the legal opinion we had sought earlier. You can read the summary of it here and a testimonial here that describes the devastating effect of this policy on one family. Many parents will be shocked to learn that a school may choose to keep their child’s gender transition at school a secret while at the same time seeking permission from parents before providing panadol.

Errant parents need coaching

If privacy law is not bleak enough, the response from Oranga Tamariki to our question about families being investigated if they refuse to go along with social transitioning adds further gloom:

Oranga Tamariki takes all allegations of harm seriously and if an individual has concerns for the wellbeing of tamariki, it is our role to assess them. In the scenario described in your request, part of our assessment focus would be on the relationship between the tamariki and their parent/guardian to understand the seriousness of the differences that exist that might stem from interpersonal disputes or different belief systems within their household around the chosen gender identity of te tamaiti and whether these are care and protection concerns…

Gender identity is self-defined. It is a person’s internal, deeply felt sense of being male, female, gender queer, trans, non-binary, gender fluid or other. We must be respectful of an individual’s gender identity, particularly in regard to recording gender identity for children, young people and others…

Finally, support and acceptance from parents and whanau or family is crucial for the well-being of gender-diverse tamariki and rangatahi. They may struggle to understand and accept the identity needs of their tamaiti or rangatahi and may need help to understand how to support them. (Emphasis added)

So that’s a ‘yes’ to our question – families certainly could be investigated if they do not believe in soul-like gender identities and refuse to go along with harmful social transitioning.

Oranga Tamariki cites the UN Convention on the Rights of the Child (1989) in defence of its policy, incorrectly stating that the UNCRoC’s support for children’s freedom of expression includes gender diversity and sexuality. In truth, the Convention does not mention either concept (it was written in 1989, after all) and states in Article 12:

States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child. (Emphasis added).

and, tellingly, in Article 14:

States Parties shall respect the rights and duties of the parents and, when applicable, legal guardians, to provide direction to the child in the exercise of his or her right in a manner consistent with the evolving capacities of the child. (Emphasis added)

Blatantly re-interpreting the UNCRoC to suit its own agenda, Oranga Tamariki informed us:

These rights are embedded in the principles of the Oranga Tamariki Act 1989, and reflected in the National Care Standards Regulations, which specify that gender identity and sexual orientation are part of identity and cultural needs.

This leaves parents with a duty of care towards their children that they are unable to fully exercise because it is being actively usurped by the policies of Oranga Tamariki and other government agencies.

Re-education for teachers

If parents are in a no-win situation, what about teachers who don’t want to teach or implement the ideology?

To our question about what rights teachers or schools might have to decline to teach gender identity ideology, the Ministry of Education responded with guidance on how teachers could re-educate themselves:

The Ministry of Education provides guidance to teachers who may feel uncomfortable with topics in relationship and sexuality education. We suggest that it may be useful for teachers to support each other (or seek extra support from others) if needed to reflect upon teaching practice in relation to feeling uncomfortable or being in conflict with their values, attitudes and beliefs. This will help teachers to think critically about the questions and responses they are providing in class when these feelings arise. We note that it is important for students to see adults model that it is okay to talk about relationship and sexuality-related topics, and that a non-biased, non-judgemental, open and respectful approach is needed for this learning. (Emphasis added)

The message to teachers is clear and is further reinforced by the Standards for the Teaching Profession that teachers are measured against every three years in order to renew their Practising Certificates. In a response to a similar OIA question in 2020, the Teaching Council stated:

Our definition of Cultural Capability includes the statement: ‘a focus on cultural capability requires teachers and kaiako to recognise diversity of identities - including culture, gender, sexuality and ability - and to take action to amplify the views of those and their communities who have been marginalised.’…

Teacher practices that embody these aspects of the code range from creating a safe classroom environment through to using the correct pronouns for each learner’s gender identity

Neglecting to uphold high quality teaching and learning or to create an inclusive learning culture is in breach of the Code. (Emphases added)

Although not all schools are yet under the spell of gender ideology, in those schools that have heartily embraced the vogue, teachers are in an invidious position - toe the Ministry line or risk losing your profession.

Opting out is not an option

In response to our question about teachers or schools being permitted to opt out of pronoun choices and mixed sex changing rooms, the Ministry of Education re-iterated the information in its Relationship and Sexuality Guide:

…we expect school policies and practices to protect and promote the safety and inclusion of all students, including transgender and non-binary students. Schools can do this by:

  • Supporting transgender students to use the facilities (e.g. bathrooms and changing rooms) they feel safe and comfortable using;

  • Ensuring transgender and non-binary students are supported to engage in sport and other physical activity in a way that is safe and inclusive; and

  • Upholding transgender, intersex and non-binary students’ privacy by confirming the student’s wishes around what name and gender identity they would like used at school and in communication with parents and whānau.

So that’s a ‘no’ to teachers being able to opt out and a ‘no’ to any consideration of the needs of students who are not transgender or non-binary. It also directly contradicts the Bill of Rights protection to hold (or not hold) a personal belief, without discrimination.

Sex-based rights disappear

We leave the last word to the Human Rights Commission. In its response, after accurately stating that the Human Rights Act “prohibits discrimination against others on account of their race, colour, sex, disability and sexual orientation among others”, the Commission boldly re-interprets that Act to include gender identity. It correctly advises that “the protections that exist under the act for minorities and other vulnerable groups in society are not intended to limit the rights of others”, and then asserts that women’s rights are not compromised by male-bodied people claiming them.

The rights of cis women and trans women are not mutually exclusive under the Human Rights Act, and the Commission takes its role in promoting all women’s rights very seriously…

The Commission’s PRISM report highlights the importance, to trans youth in particular, of the right to safely use a facility that matches their gender (see page 50 of the Commission’s 2020 Prism report)…

The application of section 49 is determined on a case-by-case basis. Transgender people, like all people, have the right to be free from discrimination on the basis of their gender identity and expression. A restriction on that right can only be justified to the extent that it is necessary and proportionate. The onus is on those wanting to exclude trans people – for example, trans women from women’s sport – to make the case for doing so.

The HRC recommends that “Complaints about discrimination between trans and cis women or girls… can be made to the Human Rights Commission’s dispute resolution service.” In other words, in the view of the HRC there are no longer any sex-based rights. Every single time safety, dignity, or fairness for women is compromised, an individual complaint must be made and will be assessed on its own merits, not in accordance with any overarching principle.

Untested laws

Until very recently, most of us would have felt confident that our parental, civil, and women’s rights were firmly protected under the Care of Children Act, the Human Rights Act, and the Bill of Rights. However, the answers to our OIA questions demonstrate that none of these rights are backed up by any confirming case law and are therefore on very shaky ground and wide open to trendy and reckless interpretations by our institutions.

Despite the Ministry of Education in its 2020 OIA response stating categorically “The Ministry of Education in New Zealand is not involved in the medical facilitation of transition”, its policies blithely encourage schools to do just that, for example in this guide from the Hutt Valley High School website.

In the same response, the Ministry repeatedly asserts “The Ministry of Education takes an evidence-based approach to procurement and development and it relies on the knowledge and experience of our reputable experts in respective areas.” In its circular consultations only with a small group of organisations that agree with gender beliefs, one of the ‘reputable experts’ the MoE relies upon is the Human Rights Commission which promulgates its own interpretation of the Human Rights Act – what it would like the Act to say, rather than what it actually says.

Unfortunately, our institutions are so captured by gender identity ideology that, if your family has been detrimentally affected by these government policies, the only recourse you may have is to complain to the Ombudsman or to take a case to court.

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