BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Summary  

[This summary does not form part of the decision.] 

The Authority has not upheld a complaint about an episode of Queer Aotearoa in which it was stated the Human Rights Act 1993 (HRA) outlaws discrimination based on sexual orientation or gender identity. The complaint was made under three standards: discrimination and denigration, accuracy and fairness. The Authority found the statement was a genuine expression of serious comment, analysis or opinion rather than something likely to incite discrimination or denigration. Regarding accuracy, the Authority noted the comment was consistent with Human Rights Commission guidance on the interpretation of the HRA, and a reasonable interpretation of the HRA. The Authority found it was not materially inaccurate in the context of the broadcast. The fairness standard did not apply.

Not Upheld: Discrimination and Denigration, Accuracy, Fairness 

The broadcast

[1]  The 8 March 2025 episode of Queer Aotearoa: We’ve always been here explored the experiences of LGBTQIA+ individuals who served in the New Zealand military, police, nursing, and other public sector roles, despite facing discrimination and having to hide their identities. It highlighted progress made over time, such as the introduction of the Human Rights Act 1993 (HRA) and the efforts by organisations like the military and police to become more inclusive. The episode contained the following statement:

… (7.22mins)

Despite progress after the 1986 homosexual law reform, the New Zealand Defence Force [NZDF] continued to exclude LGBTQIA plus personnel. That changed with the 1993 Human Rights Act, which outlawed discrimination based on sexual orientation or gender identity. Today, the Defence Force is working to be more inclusive.  

The complaint

[2]  Hilary Oxley complained the broadcast breached the discrimination and denigration, accuracy and fairness standards of the Code of Broadcasting Standards in New Zealand. Oxley provided detailed submissions in support of the complaint, key aspects of which are summarised below:

Discrimination and Denigration

[3]  The complainant said, in relation to this standard:

• The programme omitted ‘sex’ when referring to protected characteristics, which promotes confusion between sex, sexual orientation, and gender identity misleading people into thinking, for example:
  • ‘if they don’t follow sexist stereotypes or gender traditions then there is something wrong with them and they should identify as the other sex’
  • ‘if you fancy people who are the same sex as you then you ought to identify as the other gender’
  • same sex attraction means they should wish to be the other sex when instead they should be encouraged to be ‘Out in their sexuality and Proud of being a male or a female … even if they identify otherwise’
  • ‘people can actually change their sex if they identify as another gender.’
• Rather than fostering community commitment to equality, the programme ‘is stirring up anger against sex specific equal rights as well as gender I.D. rights by leading people to believe that those people with a gender I.D. get more endorsement of their rights …There is already enough discrimination against those who identify as a different gender identity to their sex without this TV programme adding to the verbal discrimination and attacks’
• It is insulting to spread the idea ‘you have to have a gender-identity if you warrant not being discriminated against for presenting yourself in ways that don’t go along with sexist stereotypes’.
• The programme undermines lesbian and gay rights by ‘erasing the relevance of biological sex’ creating ‘misunderstanding or hostility toward those advocating for sex-based protections’ and ‘[discriminating] against those who are same-sex attracted under the guise of inclusivity.’ 
• This embeds a negative stereotype that ‘someone who identifies as the other sex than … e.g. trans (so they perform/appear as the opposite sex) is in fact the opposite sex but just born wrong/ in the wrong body. This is very negative if you are attempting to break out of sex stereotypes.’
• Lesbians are particularly misrepresented and discriminated against when the programme implies that ‘sex and gender identity are the same,’ which ‘erases the legitimacy of being exclusively same-sex attracted’.
• Broadcasters must accurately explain legal protections ‘to protect sections of the community from verbal and other attacks, and to foster community commitment to equality’.

Accuracy

[4]  With respect to accuracy, the complainant said:

The programme incorrectly claimed, ‘the 1993 Human Rights Act outlawed discrimination based on sexual orientation or gender identity’.

• ‘This is factually incorrect. The 1993 HRA prohibits discrimination on the grounds of sex and sexual orientation — it does not include gender identity.’
• ‘If the programme chooses to reference the law, it should have explained that sex is being interpreted as gender identity by some institutions.’
• ‘Omitting sex and replacing it with gender identity misleads viewers about their legal protections and misrepresents the law.’
• ‘Considering this is information about a specific law, which relates to individuals as well as large groups of people, accuracy is essential.’
• ‘TVNZ claims the government has clearly considered “sex” to include transgender status under the HRA. There has been no legislation passed to support this and [government] departments may be applying their own misinterpretation of the law.’

Fairness

[5]  The complainant argued the fairness standard was breached on the basis, ‘[the] inaccurate and misleading information … is unfair on the people who are misled by it’ including children, educators, trans-identified people who do not conform to stereotypes but are still protected, and viewers who are being fed misinformation about basic rights and definitions, which is inherently unfair.

The broadcaster’s response

[6]  Television New Zealand Limited (TVNZ) did not uphold the complaint under the standards raised, as summarised below.

Discrimination and Denigration

[7]  The broadcaster said, in relation to this standard:

• The complainant believes the statement discriminates against same-sex attracted individuals, particularly lesbians, however, the statement was general and did not target any specific group.
• The complaint conveys ‘the complainant’s personal opinions regarding the inter-relationships between sex, gender identity, and sexual orientation.’
• The statement, which reflects legal interpretation, did not discriminate against or denigrate a section of the community.
• The rights of gender-diverse people do not diminish the rights of other people, such as women.
• The HRA affords both trans people and females protections against discrimination based upon their sexual characteristics and identity, and the programme simply referred to this fact.

Accuracy

[8]  With respect to accuracy, the broadcaster said:

• The complainant is correct the law does not explicitly mention ‘gender identity’ as a protected ground, ‘the precise wording of the law specifies “sex”, [however] the statement is a correct interpretation - gender identity is a facet of sex … a matter of how the law is interpreted in practice’.  
• Interpretation by government bodies has extended ‘sex’ to include ‘gender identity’ but this ‘remains a controversial matter in contemporary politics’.
• The comment accurately reflects current legal interpretation as published by the Human Rights Commission | Te Kāhui Tika Tangata, ‘sex – your sex and gender identity is a protected category. This also includes pregnancy and childbirth’.¹
• This view is supported by Community Law Centres o Aotearoa, ‘in practice, this includes gender identity … under the ground of sex’.
• ‘Your complaint relates to the explicit wording of this law, not the implicit meaning of it, or its legal interpretation in practice.’
• This continues to be a controversial matter in contemporary politics, and the lack of explicit protection (ie within the wording of the legislation, not its legal interpretation) is something which a recently drawn member's bill seeks to codify.²
• The comment did not materially mislead, as it ‘simply provides a correct interpretation of how the law applies in practice’.

Fairness

[9]  Regarding fairness, the broadcaster noted the standard protects individuals or organisations featured in a broadcast. However, the complaint does not contain an allegation relating to unfair treatment of a specific person or organisation featured in the broadcast.

[10]  In final comments TVNZ also noted the complainant ‘discusses a number of issues which were not included in the programme. These cannot be considered as part of the formal complaints process’.

The standards

[11]  The purpose of the discrimination and denigration standard (Standard 4) is to protect sections of the community from verbal and other attacks, and to foster a community commitment to equality.³ The standard states:⁴

Broadcast content should not encourage discrimination against, or denigration of, any section of the community on account of sex, sexual orientation, race, age, disability, occupational status or as a consequence of legitimate expression of religion, culture or political belief.

[12]  The purpose of the accuracy standard (Standard 6) is to protect the public from being significantly misinformed.⁵ The standard states:⁶

• Broadcasters should make reasonable efforts to ensure news, current affairs or factual content:
  • is accurate in relation to all material points of fact
  • does not materially mislead the audience (give a wrong idea or impression of the facts).
• Further, where a material error of fact has occurred, broadcasters should correct it within a reasonable period after they have been put on notice.

[13]  The purpose of the fairness standard (Standard 8) is to protect the dignity and reputation of those featured in programmes.⁷ The standard states:⁸

Broadcasters should deal fairly with any individual or organisation taking part or referred to in a broadcast.

[14]  We consider the discrimination and denigration, and accuracy standards most relevant to the concerns identified by the complainant. However, the fairness standard is addressed briefly at paragraph [34].

Our analysis

[15]  We have watched the broadcast and read the correspondence listed in the Appendix.

[16]  As a starting point, we considered the right to freedom of expression. It is our role to weigh up the right to freedom of expression and the value and public interest in the broadcast, against any harm potentially caused by the broadcast. We may only intervene where the level of harm means that placing a limit on the right to freedom of expression is reasonable and justified.⁹

[17]  The Authority has previously recognised ‘the right to freedom of expression allows individuals to express themselves in the way that they choose, so long as standards are maintained’.¹⁰ In a diverse society such as New Zealand, people communicate differently and there is value in hearing the authentic voice and perspectives of different groups within our society.   

Discrimination and denigration

[18]  Where discrimination and denigration complaints are concerned, the importance of freedom of expression means that a high level of condemnation, often with an element of malice or nastiness, will usually be necessary to conclude that a broadcast encouraged discrimination or denigration in contravention of the standard.¹¹ Broadcast content which has the effect of reinforcing or embedding negative stereotypes may also be considered.¹²

[19]  The standard is not intended to prevent the broadcast of material that is factual or a genuine expression of serious comment, analysis or opinion.¹³

[20]  The programme featured the experiences of several people in public sector roles including the military, police, nursing and teaching:

‘In 1978, [name deleted] … joined the Air Force … [there was] prejudice against ... gay males. You could never come out ... that was considered a psychiatric disorder’.

‘In 1970 [name deleted] followed in her mother’s and sister’s footsteps and began her nursing training ... I believed that if I had been open [about my sexuality] prior to getting into nursing, I wouldn't have been [accepted into nursing school] … I absolutely loved my job. Until the day I was taken away from the hospital.’ (The interviewee goes on to describe being taken to a psychiatric hospital, diagnosed with a personality disorder, and subjected to conversion therapy, including 12 years of electroconvulsive treatment.)

‘[name deleted] was discharged ... in 1968 for writing a love letter ... He talks about experiencing a mental breakdown after this.’

‘A trans man’s experience in the NZDF’ is also covered.

[21]  In connection with this, it addressed the effects human rights legislation had on the public sector in the context of the LGBTQIA+ community. It did not contain language which would incite hostility, contempt or ridicule against those advocating for sex-based rights, lesbians or any other group.

[22]  While we note the complainant’s concerns regarding potential confusion and issues arising in connection with matters of ‘gender identity’ and ‘sex’, the programme’s brief description of the HRA’s protections regarding gender identity, in the context described above, was unlikely to give rise to the serious consequences identified by the complainant.

[23]  The comment was a genuine expression of serious comment, analysis or opinion rather than something likely to incite discrimination or denigration. For these reasons we do not uphold the complaint under this standard.

Accuracy

[24]  The complaint under this standard focuses on the programme host’s statement the HRA ‘outlawed discrimination based on sexual orientation or gender identity’.  

[25]  Section 21 of the HRA specifies the prohibited grounds of discrimination to include:

• ‘sex, which includes pregnancy and childbirth’ (s21(1)(a))
• ‘sexual orientation, which means a heterosexual, homosexual, lesbian or bisexual orientation’ (s21(1)(m))

[26]  Clearly, ‘gender identity’ is not expressly mentioned. However, as TVNZ identified, the Human Rights Commission itself interprets this wording to capture gender identity. Its published guidance on the prohibited grounds of discrimination includes the following as a prohibited ground:¹⁴

Sex – your sex and gender identity. This also includes pregnancy and childbirth.

[27]  The Authority has applied the broadcasting standards consistently with this approach, finding our discrimination and denigration standard’s protection against discrimination ‘on account of sex’ encompassed discrimination against transgender people.¹⁵

[28]  The Law Commission, which is undertaking a review of the HRA’s protections for people who are transgender, non-binary or have innate variations of sex characteristics, has acknowledged the HRA does not expressly reference ‘gender identity’ (amongst other terms) indicating:¹⁶

Discrimination on these bases may already be prohibited by one or more of the current grounds listed in s 21 of the Human Rights Act 1993. However, because this has not yet been considered by a New Zealand court or tribunal, the scope of existing protection remains uncertain.

[29]  In this context, the programme’s assertion the HRA ‘outlawed’ discrimination based on ‘gender identity’ was an interpretation of its effect, rather than a statement regarding the Act’s express content. The issue for us is whether, in the context of this programme, the statement at issue can be considered materially inaccurate or misleading.  

[30]  We do not consider it can for the following reasons:

• The broadcast did not purport to quote the legislation, nor was the programme focused on the HRA and its various components.
• The broadcast was an approximately 30-minute feature on the experiences of LGBTQIA+ individuals who served in the New Zealand military, police, and other public sector roles, despite facing discrimination. The HRA was briefly mentioned once – this instance being the challenged statement.
• The broadcast identified two prohibited grounds of discrimination which were ‘outlawed’ by, rather than ‘expressly referenced in’, the HRA – wording which is consistent with an interpretation of the HRA’s effect.
• Given ‘gender identity’ was included in the Human Rights Commission’s own guidance on prohibited grounds of discrimination, it is reasonable to conclude discrimination of one’s gender identity was ‘outlawed’.

[31]  We recognise the concerns raised, that ‘sex’ should not be subsumed within ‘gender identity’, stem from a broader unease the host may have used the term ‘gender identity’ as a substitute for ‘sex’ and given the impression these are interchangeable terms within the context of the HRA. These concerns recognise such phrasing could promote harmful stereotypes downplaying the importance of biological sex, and obscuring the distinctions between sex, sexual orientation and gender identity – distinctions some may see as critical to understanding their rights.

[32]  However, the host’s comments were equally consistent with a decision to simply highlight two specific grounds of discrimination, particularly relevant to the discussion.  We are satisfied reasonable viewers are likely to appreciate the HRA prohibits discrimination on multiple other grounds, including sex.

[33]  On this basis the programme did not contain a material inaccuracy, and we do not uphold the complaint under this standard.

Fairness

[34]  The complainant’s concerns under fairness identify issues more properly considered under the accuracy standard. This is because they focus on potential consequences arising from the allegedly inaccurate description of the HRA’s protections. There was no suggestion the broadcast otherwise dealt ‘unfairly’ with any individual or organisation referred to in it. The fairness standard does not address ‘fairness’ to the audience or whether facts are ‘fairly’ or misleadingly conveyed.¹⁷

For the above reasons the Authority does not uphold the complaint. 

Signed for and on behalf of the Authority

Pulotu Tupe Solomon-Tanoa’i
Acting Chair
4 July 2025    

Appendix

The correspondence listed below was received and considered by the Authority when it determined this complaint:

1  Oxley’s original complaint – 16 March 2025

2  TVNZ’s decision – 9 April 2025

3  Oxley’s referral to the Authority – 29 April 2025

4  TVNZ’s response to the referral – 23 May 2025

5  Oxley’s further comments – 2 June 2025

6  TVNZ’s confirmation of no further comments – 3 June 2025

¹ Human Rights Commission | Te Kāhui Tika Tangata "Prohibted grounds of discrimination" <tikatangata.org.nz>
² Human Rights Prohibition of Discrimination on Grounds of Gender Identity or Expression and Variations of Sex Characteristics Amendment Bill 2023 <parliament.nz>
³ Commentary, Standard 4, Code of Broadcasting Standards in New Zealand, page 12
⁴ Standard 4, Code of Broadcasting Standards in New Zealand
⁵ Commentary, Standard 6, Code of Broadcasting Standards in New Zealand, page 16
⁶ Standard 6, Code of Broadcasting Standards in New Zealand
⁷ Commentary, Standard 8, Code of Broadcasting Standards in New Zealand, page 20
⁸ Standard 8, Code of Broadcasting Standards in New Zealand
⁹ Introduction, Code of Broadcasting Standards in New Zealand, page 4
¹⁰ See Barclay and Radio New Zealand Ltd, Decision No. 2019-003 at [12], and Lough and Television New Zealand Ltd, Decision No. 2017-080 at [11]
¹¹ Guideline 4.2 and see Oluwole and NZME Radio Ltd, Decision No. 2021-023 at [9]
¹² Guideline 4.2
¹³ Guideline 4.2
¹⁴ Human Rights Commission | Te Kāhui Tika Tangata "Prohibted grounds of discrimination" <tikatangata.org.nz>
¹⁵ See Adam & Crawford and Radio New Zealand Ltd, Decision No. 2022-067 at [35]
¹⁶ Law Commission "Ia Tangata A review of the protections in the Human Rights Act 1993 for people who are transgender, people who are non-binary and people with innate variations of sex characteristics" Background to the Review <lawcom.govt.nz>
¹⁷ Commentary, Standard 8, Code of Broadcasting Standards in New Zealand, page 20