High Court Justice David Gendall has regretfully allowed an outspoken anti-trans activist to enter New Zealand, but warns the expression of her views may be harmful to our vulnerable rainbow community. Jonathan Milne does his best to be civil.
Opinion: Kellie-Jay Keen-Minshull calls herself Posie Parker. And that's what I'm going to call her. Because she is entitled to her own identity, and to expect the basic civility from others of recognising that identity.
I do wish she'd show that same civility to others.
This is Posie Parker who recommends taking guns to women's bathrooms to protect against trans women. Posie Parker with her financial links to rightwing groups like the Trump-affiliated Conservative Political Action Conference. Posie Parker who attracted neo-Nazis to her Melbourne rally this week, with ensuing violence.
Human rights organisations applied to the High Court for an interim order to prevent the anti-transgender activist entering New Zealand on Friday afternoon, pending a more in-depth judicial review of the Immigration Minister's decision.
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The groups were unsuccessful. Early this afternoon, Justice David Gendall said he shared some of their concerns about Parker's potential threat to public order, but was loath to hastily second-guess the Immigration Minister without fully considering the arguments – including giving Parker herself the opportunity to put her case.
He said his reasons for refusing interim orders were largely technical and procedural.
If there had been more time, the decision might have been very different. Immigration Minister Michael Wood might well have been directed to intervene.
"My sympathy for the applicants' position is grounded largely in the information provided by the applicants and the Crown, which to my eye appears to clearly raise some issues of public order – issues which the minister or the delegated decision maker would have been unable to ignore," Gendall ruled.
But properly hearing and considering both sides of the argument wasn't possible ahead of Parker's anticipated arrival at Auckland International Airport.
The legal challenge the groups took on was always a difficult one because, in the words of ministers, it's a high legal bar to deny someone entry from a visa-waiver country.
Those groups taking the High Court challenge argued the law is silent on what it means to be "a threat or risk" to security, the public order or the public interest. Ahi Wi-Hongi, from Gender Minorities Aotearoa, reiterates that there have been well-reported violent clashes at Parker's overseas rallies, but says Parker also normalises hate and hostility towards trans people.
It's worth noting that the NZ Police threat assessment that informed Immigration NZ's advice to the minister was drafted before the violent scenes at the Melbourne rally; it might have been different if they had seen the clashes there.
On the most part, the definition of a threat to "security" seems to be about defence, spying and organised crime – so Parker probably doesn't cross that threshold. Nor is she a member of a designated terrorist group. Threats to the "public order" or "public interest" aren't defined by the Immigration Act 2009, but my perfunctory entry-level law studies would suggest that the terms would have to be interpreted narrowly before the courts would intervene in a person's freedom of movement.
This all begs a bigger question. Should our lawmakers and public servants be providing us with greater clarity around such vexed issues? Every year, we debate the entry of some controversial public speaker or rapper or idealogue, and most people's position seems to have more to do with their adjacency to the visitor's views, than about public order.
For instance, the National Party opposed the entry to New Zealand of US anti-war whistleblower Chelsea Manning, but supports the entry of Posie Parker to exercise her "freedom of expression". So would more prescriptive statute-drafting help us through these so-called culture wars?
"I hope our transgender whānau can turn their eyes away and know that there are a whole lot of New Zealanders out there who are on their side – that as a community we do actually support them. I really hope so." – Ang Jury, Women's Refuge
Certainly, laws and policies should be informed by evidence, not by rumours and exceptional allegations and social media memes.
I'm frustrated to see the Ministry of Health water down its position on the safety of puberty blockers partly because comms advisors couldn't be bothered dealing with an orchestrated campaign of complaints from anti-trans activists. I am similarly concerned to hear anti-trans activists pushing for policy changes like the exclusion of vulnerable trans women from Women's Refuges, on the basis of bad and wrong anecdotes. That is no way to set policy.
I spoke with Women's Refuge chief executive Ang Jury. She corrects an activist's claim that a trans woman threatened another women in a refuge – in fact, it was the other way round. But she's irritated that she should even have to engage on such polarising anecdotes.
"The use of this incident at refuge was being used totally inaccurately to support this ugly argument that she was making about a transgender woman being a danger to women in women's spaces. It's actually those transgender women who are unsafe."
Yet Jury wasn't entirely convinced by the value of the High Court challenge; for her, it's a longer project to provide greater clarity around statutory language like "incitement" and "threat to public order".
What about decision on whether to host evangelical speaker Julian Batchelor's similarly controversial anti-co-governance roadshow at civic facilities? Or the somewhat spurious reports of public funding being scrapped for the popular Sheilah Winn Shakespeare festival? Or visiting biologist Richard Dawkins' criticism of mātauranga Māori?
Where does the line lie? Should our elected representatives provide greater guidance to day-to-day decision-makers through clear and prescriptive laws and regulations?
Changing language, changing lives
I'm not sure how loaded the term "culture wars" is for people. Myself, I don't find it helpful to frame this country's discussions about race, religion, sexuality and gender in such combative language.
Especially when a family member very close to me is caught in this metaphorical crossfire.
Not that Parker would see this smart, kind, beautiful young person as a civilian in her war; to her, they're an enemy combatant, a threat to women. She characterises mums and dads who support their loved trans children as "groomers".
It's hard for me to imagine that Parker knows any transgender person as a human being; the trans people she describes are face-painted caricatures, garish monsters, "paedo freaks".
What I do know is that people change and language adapts to the needs of those who use it ... as Parker's choice of words to attack trans children and their families so amply demonstrates. In my view, the language of immigration laws and funding policies and public health advice can never be entirely prescriptive – it must allow a degree of flexibility to respond to differing circumstances.
Once, the grammar pedant in me bridled at applying the plural "them" to individuals; now I'm happy to concede it's a useful development in a flexible, changing English language.
So it's very difficult for the Parliamentary Counsel Office to anticipate changing cultural mores and scientific understanding of how people live and inter-relate. Ultimately, it's right that the Immigration Act throws such difficult decisions to the discretion of the minister.
That's what we elect them for.
Hope, in the face of fear
For now, Parker's visit looks set to proceed, in the face of protests. Ang Jury is hoping it doesn't provoke the sort of ugliness we saw in Australia.
"I hope it's not violent," she tells me.
"And I hope our transgender whānau can turn their eyes away and know that there are a whole lot of New Zealanders out there who are on their side – that as a community we do actually support them. I really hope so."
