It Was Gender All Along: The Myth of Sex-Based Human Rights

Last year, in a submission to the Law Commission’s Ia Tangata project, I argued that Aotearoa was shifting from a human rights framework based on biological sex to one grounded in gender identity. At the time, I believed that this transition itself was the primary source of tension, particularly in debates over transgender rights and single-sex spaces. I saw it as the core of the conflict with gender-critical feminists and other anti-trans activists.

But I was wrong. Dead wrong. This is my mea culpa.

After deeper reflection and engagement with the history and philosophy of human rights, I’ve reached a different conclusion: the idea that human rights were ever based on biological sex is a myth. The foundation of these rights, even when articulated in the language of "men" and "women," has always been about gender—specifically, gender identity.

This isn’t just semantics. The implications are profound. Recognising that human rights have always been about gender identity dismantles the logic used to exclude transgender people from legal protections. It exposes the shaky, discriminatory foundation of sex-based arguments and forces a reckoning with history.

The Myth of Sex-Based Rights

The main reason for this confusion is that, when many human rights laws were drafted, gender identity as distinct from biological sex wasn’t widely articulated—it was actively suppressed by dominant conservative and colonial ideologies. As a result, legal frameworks defaulted to "sex" to address issues that were, in reality, about gender.

Most modern human rights law was codified between 1970 and 2000, a period when gender identity as a distinct legal concept was not widely acknowledged. This wasn’t because it didn’t exist—transgender and non-binary people have always existed—but because it was deliberately suppressed by conservative cultural forces. Legal frameworks during this time reflected dominant cultural norms, which favoured a rigid binary understanding of sex while ignoring or actively erasing gender diversity. The fact that "sex" was the default language in human rights law is a reflection of that suppression, not evidence that rights were ever meant to be tied solely to biological categories.

Look closer at history. When rights were extended to "men" and "women," they weren’t based purely on biology. They were tied to social roles, identities, and perceived functions. Women’s rights movements weren’t just about acknowledging biological difference; they were about challenging patriarchal structures and dismantling the rigid gender norms that kept women from full participation in society. Suffragettes weren’t fighting for chromosomes—they were fighting for the right to exist in public life as equals.

Take the right to marry. Historically, marriage was legally defined as a union between a man and a woman—a supposedly "sex-based" definition. But at its core, marriage is about social and emotional bonds, not anatomy. The fight for marriage equality proved this. It wasn’t about two people of the same biological sex demanding rights; it was about people whose gender identities aligned seeking the same recognition as heterosexual couples. The acceptance of same-gender marriage made it clear: the right to marry was always about gender, not sex.

The Universal Declaration of Human Rights: A Foundation for Gender Justice

One of the most significant human rights documents ever written, the Universal Declaration of Human Rights (UDHR), does not in any way enshrine a strict biological sex binary. Adopted by the United Nations in 1948, the UDHR explicitly affirms that "all human beings are born free and equal in dignity and rights." While it refers to "men" and "women" in some contexts, it does not define these categories in biological terms. Instead, the UDHR lays the groundwork for a broader understanding of equality—one that can and must evolve to recognise gender identity as central to human dignity.

Importantly, the UDHR’s emphasis on freedom from discrimination means that any modern interpretation must include gender identity. Just as the understanding of racial and disability rights has expanded since 1948, so too must our interpretation of sex discrimination. Human rights law is not meant to be frozen in time; it must reflect contemporary understandings of identity, justice, gender, and equality. To argue that the UDHR somehow excludes transgender people is to distort its intent and ignore the ways in which human rights have always been about challenging oppressive social structures, not reinforcing them.

Indigenous Perspectives: The West is Not the Default

One of the most damning refutations of sex-based rights arguments comes from the realities of indigenous cultures worldwide. The fixation on a rigid sex binary is a colonial construct that has been imposed on societies where diverse gender identities have existed for centuries.

In Aotearoa, the concept of takatāpui—Māori people who identify with diverse genders, sexualities, and sex characteristics—demonstrates that gender fluidity was acknowledged and accepted long before European colonisation. Dr. Elizabeth Kerekere’s pivotal and ground-breaking research shows that pre-colonial Māori society did not rigidly enforce gender roles in the way that Western societies did. Takatāpui were integral members of their communities, and the idea of strictly defining rights and roles based on biological sex was foreign according to Dr Kerekere’s analysis.

Across the Pacific, gender-diverse identities such as fa’afafine in Samoa and fakaleiti in Tonga further demonstrate that the sex/gender binary is not some universal truth—it is a cultural construct, one that European colonisers violently imposed on Indigenous societies. The same can be said of North American Two-Spirit identities, which existed long before Western gender classifications. These cultures understood that identity, roles, and social status were based on much more than anatomy.

To claim that human rights are based purely on biological sex is to erase these histories and uphold a colonial framework that has long been used as a tool of oppression.

The Legal Precedent Is Already Here

The Crown Law Office recognised this nearly two decades ago. In 2006, it issued an opinion that sex, in legal contexts, could and should be interpreted to include gender identity. This pragmatic approach has worked in practice and the past 18 years have not seen the societal collapse some predicted. Instead, they’ve seen greater inclusion and recognition of transgender people’s dignity. The evidence is clear: acknowledging gender identity aligns with human rights principles, and the sky has not fallen.

Yet opposition remains. Those who resist transgender rights cling to a rigid, binary view of sex and gender, often importing harmful ideologies from overseas. Their arguments, dressed up as concerns for "women’s rights" or "child safety," are fear-mongering tactics designed to undermine trans existence. They misrepresent science, distort legal principles, and weaponise misinformation. This is not a legitimate policy debate—it is a campaign to strip a vulnerable minority of their human rights.

The Real Fear: Enforcing the Gender Binary to Sustain Power Structures

This debate isn’t really about sex at all—it’s about enforcing gender conformity. The rigid binary of "man" and "woman" is a socially constructed system of control that benefits those in power. The neoliberal economic order thrives on clearly defined, predictable social roles. Traditional gender norms ensure a stable, compliant workforce, reinforce family structures that provide unpaid labour (particularly from women), and maintain hierarchies that make capitalist exploitation easier to sustain.

Anti-trans extremists are actually doing the work of the patriarchy but they lack the self-insight to notice it.

Gender nonconformity threatens this. When people reject binary gender roles, they also reject the social expectations tied to those roles—expectations that dictate who should do what work, who should be in charge, and who should be subservient. This is why reactionary forces panic over trans rights: they know that if people can redefine gender for themselves, they might start questioning other systems of control as well.

Trans people are not just fighting for their rights; they are at the forefront of a broader challenge to neoliberalism’s reliance on rigid categories of identity. The fight for gender justice is inherently tied to the fight for economic and social justice. Those who insist that rights must be based on "biological sex" are not just resisting trans inclusion—they are defending a broader system of oppression that depends on keeping people in narrowly defined boxes.

The Next Step in Human Rights

The fight for transgender, non-binary, and intersex rights is not an add-on to human rights; it is their inevitable evolution. Just as rights once excluded women, people of colour, and homosexual individuals before expanding to include them, they must now fully embrace transgender, non-binary, and intersex people. This is not radical. This is justice.

Opposition to trans rights is rooted in the same fear-mongering tactics used against every other marginalised group that has fought for recognition. The arguments are old, the strategies predictable. What is new is the urgency of this moment. Human rights must evolve to reflect the reality of people’s lives, and that means abandoning outdated, exclusionary frameworks that fail to protect all individuals.

To insist that human rights are based on biological sex in 2025 is to deliberately ignore the social and personal realities of gender that have always shaped human experience. It is to erase transgender lives and uphold a system of discrimination for political ends. Those who oppose trans rights are not just debating policy—they are fighting to deny a group of people their fundamental human rights.

So let’s be clear: this isn’t a debate about shifting from sex-based to gender-based rights. It’s about acknowledging that human rights have always been about gender. Recognising this isn’t just the right thing to do—it’s the only way to build a truly inclusive Aotearoa.

The time for outdated, exclusionary ideas is over.

It’s gender all the way.