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Wednesday 09 November 2016


Stressed Fabric: Other Opponents of LGBTi Progress

Posted in: Comment
By Craig Young - 6th October 2016

Although LGBT New Zealanders are always vigilant about the potential threats that the New Zealand Christian Right poses to legislative and public policy reform, there are other opponents of LGBTI political progress. Several current New Zealand LGBTI political issues reflect this.

(1) Truvada/PrEP: In this case, the issue at stake is full public funding of Truvada/post-exposure prophylaxis in New Zealand so that all gay men who need it can access it. At present, the medication is intermittently accessible but unsubsidised, and has to be accessed continuously from overseas, which places it out of the hands of all who might benefit from it. Numerous clinical trials testify to the efficacy of PrEP/Truvada in Britain, France and the United States, but there appear to be questions about the duration, scale and applicability of such clinical research to the New Zealand context, although the New Zealand AIDS Foundation, AIDS Epidemiology Group and other organisations are continuing to lobby for full acess on the basis of existing clinical research trials conducted in the aforementioned jurisdictions.

(2) Historic gay consensual sex 'offences': Here, the issue is primarily inertia and absence of archival research in court case files that deal with convictions under the abolished Sections 140, 141 and 142 of the Crimes Act 1961, which had previously outlawed all gay sex. One does take current Minister of Justice Amy Adams' point that there are criminal convictions on the basis of non-consensual and underage sexual partners which would still be criminal offences and New Zealand LGBTI communities accept that proviso. Apparently, though, there are four hundred remaining convictions that require scrutiny in this context. Given that Germany, Canada, the United Kingdom and several Australian states have all resorted to statutory repeals of such past convictions, New Zealand should follow suit. Case by case referrals to the Minister of Justice are all very well, but surely they also impose an unduly onerous burden on her office, which has other priorities and duties to fulfill. A analogous historical gay offences expungement bill is the logical solution, and it seems that only inertia is the obstacle in this context.

(3) Several transgender rights issues also occur in this context. In the case of Dakota Hemmingson's successful Employment Relations Authority appeal against unfair dismissal, she availed herself of the Clark era Crown Law Office opinion that gender identity is a subcategory of sex under the Human Rights Act 1993 and thus transpeople are covered under antidiscrimination law. In Dakota's context, it was employment law that was tested.

Unfortunately, other transgender rights issues have not been so facilitated. In the case of transgender prisoner health and safety, No Pride in Prisons, Kelly Ellis QC and the Equal Justice Project have fought a protracted battle against the Department of Corrections when it came to safe incarceration of transgender prisoners in gender-appropriate prison facilities. Corrections Ministers Anne Tolley and Sam Ilotu-Iiga have stated that there has been formal change to transgender prisoner placement policies, but that does not seem reflect in sentencing procedures or in departmental policies related to processing, incarceration and custodial safety for transgender prisoners, even insofar as Department of Corrections procedural manuals are concerned. Conflict continues, and will do so unless and until there is comprehensive reform, which may require transgender rights proponents to file a number of Official Information Act requests and point to best practice professional procedure overseas for more thorough reform to occur.

Finally in this section, there is the question of subsidising transgender reassignment surgery. Here, the issue is the inadequate funding of such surgery and shortage of amenable qualified medical practitioners, so despite comprehensive Ministry of Health documents about such procedures, those who need reassignment surgery must travel to Australia or Thailand for their procedures. Minister of Health Jonathon Coleman says that the level of such surgical procedures is about right, which ignores the costs that foregone surgery access raises in suicide attempts, use of attendant medication, surgical time and professional involvement in responding to such health emergencies, psychological harm and stress on an already inadequately funded and staffed New Zealand mental health system, and other multipliers. No, Dr Coleman, the level of gender reassignment surgery is certainly not about right. Here, there needs to be engagement about the true costs of denial of surgical access and why this issue requires urgent attention.

(4) There is the associated issue of 'remedial' infant intersex surgery bans. It is unconscionable that both the Minister of Social Services Anne Tolley and her Ministry of Health advisor Dr Pat Tuohy appeared to be so ignorant about the growing corpus of medical research journal articles about the proven risks of such unneccessary surgical procedures. This requires urgent remedy, and the outcome needs to be continual gathering of such research to produce much needed legislative reform.

(5) The most recent issue on this front is the New Zealand Ministry of Health's sudden decision to drop funding for the Gay Auckland Periodic Sex Survey (GAPSS) and the accompanying Gay Online Sex Survey (GOSS), which are necessary statistical, demographic and psychographic adjuncts to health promotion planning for gay, bisexual and other men who have sex with men in the context of HIV/AIDS prevention. Most other comparable western societies fund HIV prevention agencies and researchers to carry on this research and evaluate how the social context of HIV/AIDS has changed over time. As an accompanying media release notes, this will impact developments such as Human Papilloma Virus (HPV) transmission prevention amongst younger gay men, due to be rolled out later next year, New Zealand-based clinical trials for PrEP, the Ministry's own Reproductive and Sexual Health Strategy and the current strategic review for the New Zealand AIDS Foundation. How are health promotion agencies and researchers supposed to devise new and innovative strategies to reduce the incidence and frequency of HIV exposure without a timely and comprehensive evidential basis? And as a community, how do we deal with this short sighted curtailment of resources to a neccessary community health survey necessary for strategic planning in this context?

All in all, the otherwise disparate cases cited here highlight particular, evidence-based public policy and professional practice questions that require attention from the usual avenue of LGBTI legislative reform, which involves strategic alliances between amenable professionals, focused evidence-based research and lobbying for legislative reform and changed professional practice which reflects the input of such research and professional intervention. The good news about the above is that most of them appear to be characterised by inertia and the absence of necessary but available information. From the list above, Truvada/PrEP and historic homosexual offence expungement seem to be the easiest to achieve. Indeed, in the case of transgender employment rights and transgender student health and safety, reform has already been achieved without the need for legislative reform. However, in the case of transgender prisoner safety, reassignment surgery access and infant intersex surgery prohibition, there will need to be far greater investment in procuring professional intervention, stockpiling amenable research and investing in the neccessary legislative and policy transformations that are required.



Craig Young - 6th October 2016

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