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LGBTQ rights in Fiji

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LGBTQ rights in Fiji
Fiji
StatusLegal since 2010[1]
Gender identityNot known
MilitaryNot known
Discrimination protectionsYes, discrimination banned by the Constitution
Family rights
Recognition of relationshipsNo
AdoptionNo

Lesbian, gay, bisexual and transgender (LGBT) rights in Fiji have evolved rapidly over the years, however LGBT people may still face some legal challenges not experienced by non-LGBT residents. In 1997, Fiji became the second country in the world after South Africa to explicitly protect against discrimination based on sexual orientation in its Constitution.[2][3] In 2009, the Constitution was abolished.[4] The new Constitution, promulgated in September 2013, bans discrimination based on sexual orientation and gender identity or expression. However, same-sex marriage remains banned in Fiji and reports of societal discrimination and bullying are not uncommon.

Diverse Voices and Action (DIVA) for Equality, founded in 2011, the Rainbow Pride Foundation, founded in 2008, the Amithi Fiji Project, SAN Fiji, and the Drodrolagi Movement, a student group, are among Fiji's main LGBT rights groups.

History

Similarly to the fa'afafine of Samoa, the māhū of Hawaii and the whakawāhine of New Zealand, Fiji has a traditional third gender population. Such individuals are known as the vaka sa lewa lewa (vakasalewalewa). They are assigned male at birth but dress, act and behave as female, and have traditionally been accepted by Fijian society.[5]

Law regarding same-sex sexual activity

In 2005, Australian tourist Thomas McCosker had consensual sex with an adult named Dhirendra Nadan. The men were tried and jailed under the nation's sodomy law, but the conviction was subsequently overturned in August 2005 by the nation's highest court as violating the Constitution.[6][7][8]

In the same time, then Prime Minister Laisenia Qarase defended his nation's criminal laws against homosexuality as being based on the Bible.[9][10] In contrast, then Vice President Ratu Joni Madraiwiwi stated that he felt that gay people should have their right to privacy protected.[11]

In 2006, the Fijian High Commissioner in New Zealand confirmed that there is now a policy not to arrest gay men for consensual gay sex.[12]

Since 1 February 2010, private, adult, consensual and non-commercial male and female homosexual conduct has been legal under the Crimes Decree 2009.[13]

Recognition of same-sex relationships

Main article: Recognition of same-sex unions in Fiji

Fiji family laws do not provide legal recognition of same-sex marriage or civil unions. Since 2002, the law has expressly banned same-sex marriage.[14][15]

On 26 March 2013, Prime Minister Frank Bainimarama expressed opposition to the idea of same-sex marriage. Answering a question raised by a caller on a radio talk-back programme, he stated that same-sex marriage "will not be allowed because it is against religious beliefs".[16][17] In April 2013, a support group representing LGBT students, Drodrolagi Movement, called for a discussion on the issue.[18] In January 2016, the Prime Minister reiterated his opposition to same-sex marriage, saying "there will be no same-sex marriage in Fiji" and suggested that lesbian couples seeking to marry move to Iceland.[19]

In 2019, after speculations that some churches support the idea of same-sex marriage, the Prime Minister reiterated his opposition to same-sex marriage, saying, "As long as we are in government – Fiji will not allow same-sex marriage", because Fiji is a "God-fearing country".[20] His stance was backed by the Catholic Church in Fiji, the Methodist Church of Fiji and Rotuma, the Shree Sanatan Dharm Partindhi and the Fiji Muslim League, which all voiced their opposition to same-sex marriage.[21] Director of the Fiji Human Rights and Anti-Discrimination Commission Ashwin Raj said that "same-sex marriage is not a right" and that there needs to be more clarity on what the Constitution of Fiji states on the issue of same-sex marriage, and that "the priority must be towards addressing discrimination faced by the LGBTI community". He also called for "a calm and rational debate" about the issue.[22] The Fiji Coalition on Human Rights said it was "disappointed and disturbed" by the Prime Minister's stance, arguing that his remarks go against the basis of Fiji's laws and contradicted his commitment to the United Nations Human Rights Council. It called on authorities to get together and discuss progression towards the inclusion of the LGBT community in Fiji.[23]

Fijian-New Zealand based activist, Shaneel Lal has called for the Fijian government to allow same-sex marriage.[24] Former President of Ireland Mary Robinson has also called on the Pacific leaders including Fiji to decriminalize homosexuality.[25]

In 2022, former Director of Human Rights and University of Fiji’s Dean of Justice Professor Shaista Shameem stated that the Marriage Act which limits the union of two people to only between a male and a female can be contested in courts.[26] In response, Director of the Fiji Human Rights and Anti-Discrimination Commission Ashwin Raj said that "the issues are far more complex and the Fijian Constitution provides fertile ground for developing jurisprudence". He also added that the priority first is to address the violence and discrimination faced by the LGBTQ community.[27][28] Leaders of the People's Alliance Party and the National Federation Party evaded questions regarding the legalization of same-sex marriage. Instead both leaders responded that they would respect the rights of every citizen. Sitiveni Rabuka added that "marriage in Fiji is governed by the Marriage Act" and until that changes, it is up to the government to change it.[29]

Discrimination protections

Discrimination in employment based on sexual orientation is banned in Fiji under the Employment Relations Promulgation 2007.[30]

In 1997, the Constitution included a provision that specifically prohibited government discrimination on the basis of sexual orientation. In 2009, the Fiji Constitution was formally abolished by the President.[31][32]

In April 2013, the Attorney General, Aiyaz Sayed-Khaiyum, stated that a new constitution, which was supposed to be finalized sometime in 2013, would ban discrimination based on sexual orientation.[33] The Constitution was promulgated in September 2013 and includes a provision banning discrimination based on sexual orientation and gender identity or expression.[34][35] Article 26(3) of the Constitution reads as follows:[34][36]

A person must not be unfairly discriminated against, directly or indirectly on the grounds of his or her

(a) actual or supposed personal characteristics or circumstances, including race, culture, ethnic or social origin, colour, place of origin, sex, gender, sexual orientation, gender identity and expression, birth, primary language, economic or social or health status, disability, age, religion, conscience, marital status or pregnancy; or
(b) opinions or beliefs, except to the extent that those opinions or beliefs involve harm to others or the diminution of the rights or freedoms of others,

or on any other ground prohibited by this Constitution.

It was reported in 2013 that the Government had included sexual orientation and gender identity in an anti-hate speech law as well as a law dealing with discrimination in certain businesses.

Conversion therapy

Conversion therapy has a negative effect on the lives of LGBT people, and can lead to low self-esteem, depression and suicide ideation.

The Mental Health Decree 2010 states that people are not to be considered mentally ill if they refuse or fail to express a particular sexual orientation, and prohibits any conversion therapy by registered health professionals in the field of mental health.[37]

Activist Kalisito Biaukula has been outspoken about how for many LGBTQ+ people in Fiji, physical violence and domestic abuse are a form of familial conversion therapy.[38]

Blood donation

In April 2017, the Fijian Ministry of Health confirmed that gay and bisexual men are banned from donating blood.[39] The Ministry's statement came after a gay man attempted to donate blood but was refused because of his sexual orientation. Ashwin Raj, the Fiji Human Rights and Anti-Discrimination Commission Director, later said that he would investigate the policy, arguing that it is unconstitutional and discriminatory.[40]

Social conditions

See also: Religion in Fiji

A majority of citizens affiliate with Methodist or Catholic denominations, which traditionally view same-sex sexuality and transgender identities negatively. The third largest religious group, about 6% of the population, are Muslim, who also tend to view homosexuality and cross-dressing as sinful behavior that needs to be fixed. While other, generally more tolerant, religious traditions do exist in Fiji they tend to have smaller memberships. These prevailing religious mores tend to influence the status of LGBT people within society.

Reports of hate crimes against LGBT people in Fiji are rare, although there has been some, possible, high-profile case of a same-sex couple being the victims of a bias motivated crime. On 1 July 2001, Red Cross leader John Maurice Scott and his partner, Gregory Scrivener, were brutally murdered in Suva, in an apparent homophobic attack with a possible political motive.[41] Scott and Scrivener's story has become the subject of a 2008 New Zealand documentary, An Island Calling.[42] In September 2017, a gay student was found dead in Nasinu. In May 2018, a young transgender woman was brutally murdered in Suva.[43] Lack of trust in the police due to possible harassment likely discourages LGBT people and couples from reporting anti-gay violence or hateful discrimination.[44]

Social mores regarding sexual orientation and gender identity tend to be conservative, with little public support for LGBT rights.[15] While some human rights activists do some low-key work on LGBT rights concerns, the Government has, in the past, cancelled gay pride marches from taking place.[45] On 17 May 2013, the International Day Against Homophobia, Transphobia and Biphobia (IDAHOTB), LGBT activists organised activities to promote LGBT rights and equality. Drodrolagi Movement, an LGBT advocacy group, said that discrimination and bullying remain problems in Fiji.[46] In 2017, an event celebrating IDAHOTB was held in the capital of Suva. The event was attended by many LGBT activists as well as religious figures.[47]

While not illegal, visitors are advised that public displays of affection are generally considered offensive.[48]

Fiji's first pride parade was held on 17 May 2018 to coincide with the International Day Against Homophobia. The march took place in Lautoka, Fiji's second largest city, and was the first such march in a Pacific island nation (excluding New Zealand and some dependent territories, such as Hawaii). Local police provided an escort for the participants.[49] Former President Epeli Nailatikau spoke at the event.[50]

Summary table

Same-sex sexual activity legal Yes (Since 2010)
Equal age of consent (16) Yes (Since 2010)
Anti-discrimination laws in employment only Yes (Since 2007)
Anti-discrimination laws in the provision of goods and services Yes (Since 2013)
Anti-discrimination laws in all other areas (Incl. indirect discrimination, hate speech) Yes (Since 2013)
Same-sex marriages No
Recognition of same-sex couples No
Stepchild adoption by same-sex couples No
Joint adoption by same-sex couples No
LGBT people allowed to serve openly in the military
Right to change legal gender
Homosexuality declassified as an illness Yes
Conversion therapy banned Yes (Since 2010)
Access to IVF for lesbians No
Commercial surrogacy for gay male couples No
MSMs allowed to donate blood No

See also

References

  1. ^ "Fiji's new decree says gay sex is now legal". Gaynz.com. 4 March 2010. Archived from the original on 7 March 2010. Retrieved 20 January 2011.
  2. ^ United Nations High Commissioner for Refugees. "Refworld - Fiji: Treatment of homosexuals by society and government authorities; recourse and protection available to homosexuals who have been subject to ill treatment (2005 - March 2007)". Refworld. Retrieved 27 July 2015.
  3. ^ "Fiji - GlobalGayz". GlobalGayz. Retrieved 27 July 2015.
  4. ^ "Fiji's president takes over power". BBC News. 10 April 2009. Retrieved 20 January 2011.
  5. ^ Taonga, New Zealand Ministry for Culture and Heritage Te Manatu. "Defining gender diversity". teara.govt.nz.
  6. ^ "gmax.co.za". Retrieved 27 July 2015.
  7. ^ "Fiji: Sodomy Law Convictions Violate Constitution". Human Rights Watch. 13 April 2005. Retrieved 27 July 2015.
  8. ^ "yax-479 Fiji's unnatural sex laws overturned". Retrieved 27 July 2015.
  9. ^ "Fiji PM says homosexuality a sin". The Sydney Morning Herald. 13 April 2005. Retrieved 27 July 2015.
  10. ^ "Prime Minister says Fiji's Sodomy Law Reflects Biblical Truth". Retrieved 27 July 2015.
  11. ^ "Cengage Learning". Retrieved 27 July 2015.
  12. ^ "Fijian High Commission confirms; no more arrests for consensual gay sex in Fiji". Pink News. 11 July 2006. Archived from the original on 26 September 2011. Retrieved 20 January 2011.
  13. ^ "Same sex law decriminalised". Fijitimes.com. 26 February 2010. Archived from the original on 22 August 2011. Retrieved 20 January 2011.
  14. ^ "Marriage Act [Cap 50]". Retrieved 27 July 2015.
  15. ^ a b "Same-sex marriage in Fiji". Go-fiji.com. Retrieved 20 January 2011.
  16. ^ "No same-sex marriage: PM - Fiji Sun". Retrieved 27 July 2015.
  17. ^ "Fiji prime minister says no to gay marriage". Archived from the original on 3 December 2013.
  18. ^ "Group for gay Fiji students calls of discussuion on same-sex marriage". Radio New Zealand. 5 April 2013. Retrieved 27 July 2015.
  19. ^ D'Angelo, Chris (6 January 2016). "Fiji Prime Minister Tells Gay Couples To Move To Iceland". HuffPost.
  20. ^ Bia, Aliki (8 April 2019). "Same-sex marriage will never happen in Fiji: PM". FBC News.
  21. ^ Bolatika, Maika (10 April 2019). "Faiths Back PM on Same-Sex Marriage Stance". Fiji Sun.
  22. ^ Bia, Aliki (9 April 2019). "Raj gives clarification on same-sex marriage issue". FBC News.
  23. ^ "Fiji NGO chief condemns Bainimarama's no same-sex marriage stance". Radio New Zealand. 10 April 2019.
  24. ^ Shaneel Lal | Untold Fijian Stories | Genda Diaspora Auckland 05/10/19, retrieved 2 December 2021
  25. ^ "Pacific leaders urged to decriminalise homosexuality across the region". RNZ. 17 June 2022. Retrieved 17 June 2022.
  26. ^ Journalist, Litia Cava Multimedia. "Marriage Act can be tested in court: Shameem". Fiji Broadcasting Corporation. Retrieved 17 June 2022.
  27. ^ Manager, Ritika Pratap Deputy News. "Same-sex marriage needs calm and rational debate". Fiji Broadcasting Corporation. Retrieved 17 June 2022.
  28. ^ "Commission Says Same Sex Marriage Concept Needs 'Jurisprudence'". Retrieved 17 June 2022.
  29. ^ "Same Sex Marriage Views". Retrieved 17 June 2022.
  30. ^ "Employment Relations Promulgation 2007". Retrieved 27 July 2015.
  31. ^ "Fijian president Ratu Josefa Iloilo abolishes constitution, sacks judiciary and assumes power". Theaustralian.com.au. 10 April 2009. Retrieved 20 January 2011.
  32. ^ "Fiji's President Abolishes Constitution, Fires Judiciary". Foxnews.com. 9 April 2009. Retrieved 20 January 2011.
  33. ^ "Hate speech not allowed". Archived from the original on 20 April 2014. Retrieved 27 July 2015.
  34. ^ a b "CONSTITUTION OF THE REPUBLIC OF FIJI". Archived from the original on 6 February 2016. Retrieved 21 September 2013.
  35. ^ "President signs long-awaited Fiji constitution into law". ABC News. 6 September 2013. Retrieved 27 July 2015.
  36. ^ "Yavunivakavulewa ni Matanitu Tugalala o Viti" (PDF). Paclii.org (in Fijian). Retrieved 9 July 2019.
  37. ^ "Mental Health Decree 2010".
  38. ^ "Kalisito Biaukula survived 'Pacific conversion therapy' — now they are challenging a 'narrative of shame'". ABC News. 30 May 2022. Retrieved 30 May 2022.
  39. ^ Fiji confirms ban on homosexual blood donors Radio New Zealand
  40. ^ Controversy in Fiji over ban on blood donations from gay men Radio New Zealand
  41. ^ "Scrivener was tortured, says family". The New Zealand Herald. Retrieved 27 July 2015.
  42. ^ "In the name of God". Stuff. 31 January 2009. Retrieved 27 July 2015.
  43. ^ "Murdered on International day against Transphobia: fears Fiji killing is a hate crime". ABC News. 22 July 2018. Retrieved 29 July 2018.
  44. ^ "Fiji Victims of Anti-Gay Violence Often Fear Community Reprecussions If They Report Attacks To Police". Pacific Islands Report. 12 March 2017. Archived from the original on 29 July 2018. Retrieved 29 July 2018.
  45. ^ "Fiji police cancel gay rights march". Radio New Zealand International. 17 May 2012. Retrieved 17 May 2012.
  46. ^ Fiji: LGBT rights campaigners say discrimination remains a major issue Archived 30 December 2018 at the Wayback Machine Pink News
  47. ^ Celebrating IDAHOT – Love Makes a Family Archived 29 July 2018 at the Wayback Machine Fiji News
  48. ^ "Fiji: Gay & Lesbian Travellers". Lonely Planet. Archived from the original on 31 December 2017. Retrieved 29 May 2016.
  49. ^ "Fiji hosts first Pride Parade on IDAHOTB". 21 May 2018.
  50. ^ Ratu Epeli to address LGBTQI conference, The Fiji Times, 17 May 2018
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