LGBT rights in New Zealand

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LGBT rights in New Zealand
New Zealand
Same-sex sexual activity legal? Male legal since 1986,
female was never criminalized
Gender identity/expression -
Military service Gays and lesbians allowed to serve
Discrimination protections Human Rights Act 1993 covers sexual orientation and gender identity
Family rights
Recognition of
relationships
Same-sex marriage since 2013
Adoption Joint adoption for married same sex couples allowed

Lesbian, gay, bisexual, and transgender (LGBT) people have the same legal rights as other people in New Zealand. Sex between men was decriminalised in 1986. New Zealand enacted legislation that permitted civil unions in 2005, which allowed couples many of the same rights as married couples and same-sex marriage has been legalised and gone into effect since August 19, 2013.

History and law reform[edit]

Homosexual intercourse became illegal in New Zealand when the country formally became part of the British Empire in 1840 and adopted British law making homosexual sex punishable by death. Capital punishment was never carried out in New Zealand for any reason than murder or one case of treason, and was abolished in 1961. In 1893 the law was broadened to outlaw any sexual activity between men. Penalties included life imprisonment, hard labour and flogging. Sex between women has never been legally prohibited in New Zealand.

Attempts to change the law included a petition presented to Parliament by the Dorian Society (the first New Zealand organisation for homosexual men) in 1968, and steps taken by National Member of Parliament, Venn Young, in 1974.

In 1986, the Crimes Act was changed with the passing of the Homosexual Law Reform Act 1986, removing the offence of consensual sex between males over the age of sixteen. Discrimination on the basis of sexual orientation was outlawed several years later in amendments to the Human Rights Act.

Note those convicted and imprisoned for homosexual offences prior to August 1986 are not automatically eligible to hide the offences under the Criminal Records (Clean Slate) Act 2004, since the Act applies retrospectively to current and abolished offences equally. However, individuals with an otherwise clean criminal record can apply to the District Court to have the offences struck off.

Gender identity/expression[edit]

New Zealand does not have specific transgender anti-discrimination laws, although New Zealand's anti-discrimination laws are now thought to cover members of the transgender communities. The Human Rights Commission in New Zealand said in 2005 that it considered transgender people to fall within the definition of sex discrimination, and would accept complaints from transgender people. Transsexual Member of Parliament Georgina Beyer had the Human Rights (Gender Identity) Amendment Bill ready for debate in Parliament as a member's bill in 2004. However, on 16 August 2006, New Zealand's Solicitor-General issued an opinion (reference below) to the effect that transgender people were covered under the 'sex discrimination' provision of the Human Rights Act 1993. Georgina Beyer said when withdrawing her bill, "That's good enough for me".

In 2007/2008 the Human Rights Commission published "To Be Who I Am", a report that came from the Human Rights Transgender Inquiry. In this publication, the Human Rights Commission recommended the clarification of the Human Rights Act in terms of gender identity, by specifically including "gender identity" under the Sex category of the Human Rights Act. Despite widespread support from New Zealand LGBT communities, this goal has not yet been achieved.

In 1994, the New Zealand High Court ruled that post-operative transsexuals could marry as their new sex.

Relationships, civil unions and same-sex marriage[edit]

The Property (Relationships) Amendment Act 2001 gives de facto couples, whether opposite or same sex, the same property rights as existed since 1976 for married couples on the break-up of a relationship.[1]

The Civil Union Act 2004 established the institution of civil unions for same-sex and opposite-sex couples. The Act is very similar to the Marriage Act with "marriage" replaced by "civil union". The following year, the Relationships (Statutory References) Act 2005 was passed to remove discriminatory provisions from most legislation.[2]

Same-sex marriage in New Zealand was refused judicial approval by the Court of Appeal after Quilter v Attorney-General in 1994. However, unlike Australia and much of the United States, New Zealand has also refused to pre-emptively ban same-sex marriage if some future Parliament decided to approve it within an amended Marriage Act 1955. In December 2005, an abortive private members bill failed at its first reading to do so. Until Louisa Wall's bill was passed in April 2013, same-sex marriage and adoption were the final barrier before full LGBT formal and substantive equality in New Zealand.

In July 2012, a member's bill by Labour MP Louisa Wall which proposed defining marriage to be inclusive regardless of gender was drawn from the ballot. Preliminary reports show that there is widespread support for the bill both within Parliament (notably from Prime Minister John Key[3] and Leader of the Opposition David Shearer) and amongst the New Zealand public, with polls conducted in May 2012 indicating 63% support. However, there has been opposition from religious and conservative groups. The bill passed its first reading on 29 August 2012, 80 votes in favour to 40 opposed (with one abstention). The bill passed its second and third readings by 77-44, and became law on 19 April 2013. However, same-sex marriages were not conducted until August.[4] In December 2012, former Governor-General Dame Catherine Tizard starred in an online video campaign supporting same-sex marriage, alongside New Zealand singers Anika Moa, Boh Runga and Hollie Smith, as well as Olympian Danyon Loader.[5]

Discrimination[edit]

The Human Rights Act 1993 outlaws discrimination on the grounds of sexuality. Initially this law exempted government activities until 1999. In 1998 an Amendment Bill was introduced making this exemption permanent. This was abandoned following a change of government in 1999. The new Labour government instead passed another Amendment Act to apply the Human Rights Act to government activities, and also to create a new ability for the Courts to "declare" legislation inconsistent with the Act.

The Royal New Zealand Navy and the Police are amongst many government agencies to have adopted "gay-friendly" policies.

Some examples of discrimination are still reported. In January 2006, news headlines were made by a sperm bank's policy of refusing donations from gay men. In March 2006, the former policy was amended and the latter is being reviewed. Reportedly some heterosexual male sperm donors have vetoed the use of their gametes for lesbians who seek artificial insemination.[6] The New Zealand Blood Service (NZBS), like many countries, controversially defers any man who has had oral or anal intercourse with another man, with or without protection, in the past five years from donating blood, which is taken to be discrimination against gay men. The restriction is on the basis that MSM in New Zealand are 44 times more likely to be infected with HIV/AIDS than the general population, and the HIV testing used is not specific enough (up to 1 in 1000 failure rate) to guarantee a 100 percent HIV-free blood supply.[7]

Adoption and parenting[edit]

Currently there are no specific barriers preventing an LGBT individual from adopting children, except that a male individual cannot adopt a female child. The same-sex marriage law became effective from 19 August 2013, and since then married same-sex couples were able to adopt children jointly. Unmarried couples and couples in civil unions, whether same-sex or opposite-sex, cannot jointly adopt children. The minimum age to adopt in New Zealand is 20 years for a related child, and 25 years or the child's age plus 20 years (whichever is greater) for an unrelated child.

On 21 May 2006, Green List MP Metiria Turei raised the issue of LGBT adoption, arguing that New Zealand's Adoption Act 1955 did not meet the complexities of contemporary New Zealand society. She argued following the enactment of the Civil Union Act in particular that eligible lesbian and gay prospective parents should be enabled to legally adopt. At present, gay Green List MP Kevin Hague has taken over this member's bill, which is currently awaiting being drawn from the ballot for member's bills Parliament holds from time to time.

Many lesbian couples are now raising children in New Zealand. Where these children are conceived through donor (sperm) insemination both of the lesbians are recognised on the children's birth certificates (the birth mother as 'mother', the other mother as 'other parent'). This is following the Care of Children Act 2004, which replaced the Status of Children Act 1969 (see Part 2). Fostering and guardianship are also recognised in New Zealand law and regulation, and reproductive technology has been accessible since 1994.

The current status of New Zealand adoption law is that while it is possible for the former coparent to individually adopt the child of her (or his) partner if she (or he) has had predominant parental responsibility during the absence of that partner,[8] it is not similarly possible for a long-term lesbian (or gay) coparent within an ongoing relationship to do likewise, although guardianship orders are available in this context. Ironically, the cited case would have been superseded by the Care of Children Act 2004, given that the children had been parented through donor insemination (see below)[9]

The donor is not recognised as a legal parent in New Zealand law. However, parents and donors can make formal agreements as to how things will work but the Courts do have flexibility as to whether they recognise these agreements or not (see section 41 of the Care of Children Act 2004).

Lesbians who have trouble conceiving using private donor insemination may be eligible, as other New Zealand women are, to help through publicly funded fertility treatment. However, there are conditions on this and every woman needing fertility treatment is scored as to her eligibility

Now passed, the current Marriage (Definition of Marriage) Amendment Act will enable eligible same-sex parents to adopt children as there is a clause to that effect contained therein. However, known-relative adoptions in New Zealand have outnumbered stranger adoptions since the mid-1970s; between 2007 and 2013, there were 18 known-relative and step-parent adoptions for every 10 stranger adoptions.[10] Also, birth parents can choose the adoptive parents for their child, meaning same-sex couples may be passed over. It is therefore likely that the law will predominantly apply to non-biological parents/co-parent partners of biological lesbian mothers or gay fathers.

Criminal justice[edit]

New Zealand has a hate crimes clause which includes sexual orientation and gender identity, Section 9(1)(h) of the Sentencing and Parole Act 2002,[11] although it has not yet been invoked in the context of a hate crime against an LGBT person.[citation needed] More recently, New Zealand LGBT communities were concerned about the continued existence of the provocation defence (Section 169 of the Crimes Act 1961) argument which they held had mitigated the seriousness of homophobic homicides through reducing probable, intentional murder convictions to the lesser charge and penalty of manslaughter (see gay panic defence).

In August 2009, Justice Minister Simon Power introduced the Crimes (Provocation Repeal) Amendment Bill to repeal sections 169 and 170 of the Crimes Act, although its introduction was largely stemmed from the trial for the murder of Sophie Elliott by her ex-boyfriend, rather than the LGBT community. The repeal bill received wide parliamentary and public support, and passed its third reading on 26 November 2009, 116 votes to 5, with only ACT New Zealand opposed, and became law effective 8 December 2009.[12][13]

Politics[edit]

Gay rights were a major political issue during the Homosexual Law Reform debates, but have subsequently become much less so. The Civil Union Act was opposed by nearly half of Parliament, but in tones much more restrained than that of the Homosexual Law Reform era. The Destiny political party, founded to bring ‘Christian morality’ into politics, received only 0.62% of the party vote in the 2005 general election. There have been a succession of unsuccessful fundamentalist Christian political parties within New Zealand since the introduction of electoral reform in New Zealand in 1993 made proportional representation possible. Of these, Christian Heritage New Zealand closed down in 2005 after its former leader Graham Capill was sentenced to nine years imprisonment after multiple cases of sexual assault against three female children. Future New Zealand, the Kiwi Party, the aforementioned Destiny New Zealand and the Family Party all succeeded it, but none lasted long. Currently, the officially secular Conservative Party of New Zealand, which has yet to gain parliamentary representation appeals to voters in this area.

There are a number of gay and lesbian Members of Parliament (MPs). The first to be elected was Chris Carter, who became the first openly gay MP when he came out shortly after the 1993 election. He lost his seat in the 1996 election, but won it again in the 1999 election and became New Zealand's first openly gay cabinet minister in 2002. Carter united in Civil union to his long-time partner of thirty three years, Peter Kaiser on 10 February 2007.

Tim Barnett was the first MP to be elected as an openly gay man, in the 1996 election. In 1997, Barnett and Carter started Rainbow Labour as a branch of the Labour Party to represent gay, lesbian, and transgender people within a major mainstream party, the first of its kind in New Zealand.

Maryan Street was New Zealand's first openly lesbian MP, elected in the 2005 election. However, the National Party's Marilyn Waring had preceded Street, and while she was outed at one point, Waring's strong pro-choice identification and vocal feminism overshadowed her lesbianism, which was then considered a private matter. Since she left Parliament in 1984, Waring has more openly acknowledged her sexual orientation. In 2005, Chris Finlayson became the first openly gay National Party MP, elected to Parliament on his party's MMP party list in the 2005 election. Other current openly gay MPs are Charles Chauvel and deputy leader Grant Robertson of the Labour Party and Kevin Hague of the Green Party. Following the resignation of Darren Hughes of the Labour Party caucus in 2011, the openly lesbian Louisa Wall became an MP. She was joined by openly lesbian Green Party MP Jan Logie following the 2011 general election.[14]

Georgina Beyer became the first transsexual mayor in the world when she became the Mayor of Carterton in 1995. In the 1999 election, she became the world's first transsexual MP. She retired from Parliamentary politics on 14 February 2007.

Sports[edit]

New Zealand's short-track speed skater and Olympian Blake Skjellerup, who came out as gay in May 2010 after the 2010 Winter Olympics[15] is one of only a few openly gay Olympic athletes.

Pride events[edit]

The first gay pride events were held in the 1970s. In the 1990s, the Hero Parade was held annually in Auckland. It was a significant public event which was publicised throughout New Zealand, and which created a significant amount of attention during the period when the Parade was held (1992–2001). The controversy it created amongst conservative Christians was dwarfed by crowds of extraordinary size by New Zealand standards. The Hero Festival continues but it does not attract as much attention, because there are no longer any Parades. In February 2013, however, Auckland held a Pride parade, with no opposition evident.

Another LGBT event is the Big Gay Out, a family event which is held annually in Auckland at Pt Chevalier's Coyle Park. The numbers of people attending has risen steadily over the past few years and includes appearances from the current Prime Minister, Leader of the Opposing Party and many other politicians from centre-left and centre-right parties alike, who show their support for the LGBT community.

Realm of New Zealand[edit]

Although anti-discrimination laws and laws regarding civil unions and same-sex marriage apply in New Zealand, these do not apply in the territories of Niue, Tokelau or the Cook Islands due to their separate legislatures. Sodomy remains a crime in the Cook Islands, although in Niue and Tokelau the sodomy laws were repealed from the Niue Act in 2007 when sections of the Act that mention buggery were repealed.[16]

Summary table[edit]

Same-sex sexual activity Yes since August 1986
Equal age of consent Yes since August 1986
Anti-discrimination laws in employment Yes since 2009
Anti-discrimination laws in all other areas Yes since 2009
Hate crimes laws covering both sexual orientation and gender identity Yes
Recognition of same-sex couples (e.g. civil unions) Yes since April 2005
Same-sex marriage Yes since August 2013
Adoption by same-sex couples Yes since August 2013
Gays allowed to serve in the military Yes
Right to change legal gender Yes
Access to IVF for lesbians Yes
MSMs allowed to donate blood Yes But after a 1-year deferral[17]
Direct anti-discrimination law inclusion for transgender/intersex No

See also[edit]

References[edit]

  1. ^ "Property (Relationships) Amendment Act 2001". Legislation.govt.nz. Retrieved 2013-12-05. 
  2. ^ "Relationships (Statutory References) Act 2005". Legislation.govt.nz. 2008-11-01. Retrieved 2013-12-05. 
  3. ^ Kate Chapman (2012-07-30). "PM John Key hints at continued support for gay marriage...". Stuff.co.nz. Retrieved 2013-11-02. 
  4. ^ "Marriage (Definition of Marriage) Amendment Bill - First Reading". Hansard Office, New Zealand Parliament. 29 August 2012. Retrieved 31 August 2012. 
  5. ^ "Marriage equality 'about love'". 3 News NZ. December 6, 2012. 
  6. ^ http://www.gaynz.com/aarticles/templates/Features.asp?articleid=1218&zoneid=2
  7. ^ "Behavioural Donor Deferral Criteria Review - Final Report to the New Zealand Blood Service". April 2008. Retrieved 20 July 2012. 
  8. ^ Application by RH to adopt RTH - Family Court Napier A, 13/84
  9. ^ Re an application by T [1998] New Zealand Family Law Reports 769-775
  10. ^ "Adoptions Data". Department of Child, Youth and Family. Retrieved 1 March 2014. 
  11. ^ "Sentencing Act 2002 No 9 (as at 23 October 2013), Public Act 9 Aggravating and mitigating factors – New Zealand Legislation". Legislation.govt.nz. Retrieved 2013-11-02. 
  12. ^ New Zealand Law Commission: The Partial Defence of Provocation: Wellington: NZLC: 2007
  13. ^ Hartevelt, John (27 November 2009). "Parliament scraps partial defence of provocation". The Press. Retrieved 14 October 2011. 
  14. ^ Contact: Jan Logie MP (2012-02-15). "Jan Logie's maiden speech to the House". Greens.org.nz. Retrieved 2013-11-02. 
  15. ^ "Kiwi Olympian reveals he is gay". New Zealand Press Association. Television New Zealand. 6 May 2010. Retrieved 3 January 2011. 
  16. ^ "Niue Amendment Act 2007" (PDF). Retrieved 2013-12-05. 
  17. ^ "Detailed eligibility criteria". New Zealand Blood Service. Retrieved 26 September 2013. 

Bibliography[edit]

External links[edit]