LGBT rights in New Zealand

Law reform

Male homosexual intercourse was criminalised when New Zealand became part of the British Empire in 1840 and adopted British law making "buggery" punishable by death. (In practice, New Zealand used the death penalty only for offences of murder and once for treason before abolishment in 1961). In 1861 Britain replaced the death penalty for buggery with life imprisonment. New Zealand enacted similar legislation six years later. In 1893 the law in New Zealand was broadened to outlaw any sexual activity between men. Penalties included life imprisonment, hard labour and flogging. Sex between women has never been criminalised in New Zealand.

The Dorian Society (1962–88) was the first New Zealand organisation for homosexual men. The British Homosexual Law Reform Society provided legal assistance to the society. It drafted a petition calling for the decriminalisation of homosexual acts. Signed by 75 prominent citizens, a petition was presented to (and rejected by) Parliament in 1968.

In 1972, academic Ngahuia Te Awekotuku was denied a visitors permit to the United States on the grounds that she was a homosexual. Publicity around the incident was a catalyst in the formation of gay liberation groups in Wellington, Christchurch and Auckland. The 1970s saw the growth of the modern feminist and gay movements in New Zealand.

Member of Parliament Venn Young introduced a Crimes Amendment Bill in July 1974, which was the first bill to propose decriminalising homosexual acts between consenting adults. It was unsuccessful and was criticised by gay rights organisations for setting the age of consent at 21, unlike the age of 16 for heterosexual acts. Gay rights organisations refused to support bills which did not present an equal age of consent.

In 1985, Labour Member of Parliament Fran Wilde consulted with gay rights groups to develop the Homosexual Law Reform Bill, which she introduced to Parliament on 8 March. It proposed removing the offence of consensual sex between males over the age of sixteen. Over the course of 14 months, the bill attracted organised opposition outside Parliament, including an anti-reform petition (which was rejected by Parliament). Inside Parliament, multiple attempts to raise the age of consent to 18 were rejected. The bill passed its final reading on 9 July 1986, 49 votes in favour to 44 opposed. It achieved Royal Assent (became an Act) on 11 July 1986, and it came into effect on 8 August that year.

Discrimination on the basis of sexual orientation and (implicitly) gender identity was outlawed several years later by the Human Rights Act 1993.

Individuals 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 a District Court to have the offences struck off.

Gender identity and expression

Gender reassignment surgery is legal in New Zealand. An individual is permitted to change their name and legal gender on official documents, including birth certificate, if they can provide medical evidence that they have "acquired a physical conformation that accords with their gender identity". Originally this was only available to individuals who had undergone genital-reconstruction surgery. However, in June 2008, the Family Court ruled that full gender-reassignment surgeries are not always necessary to meet this legal threshold.

The New Zealand Human Rights Commission noted in its 2004 report on the status of human rights in New Zealand that transgender and non-binary people in New Zealand face discrimination in several aspects of their lives, however the law is unclear on the legal status of discrimination based on gender identity. Currently, the Human Rights Act 1993 does not explicitly prohibit discrimination on the basis of gender. Whilst it is believed that gender identity is protected under the laws preventing discrimination on the basis of either sex or sexual orientation, it is not known how this applies to those who have not had, or will not have, gender reassignment surgery. Some overseas courts have determined that transgender people are covered by prohibitions on discrimination based on sex, but there is also international case law suggesting it is not. Even if it is, it is unlikely to apply to transgender people who have not or will not have gender reassignment surgery. Likewise, placing gender identity under the prohibitions on the grounds of sexual orientation is problematic. While there is some inconsistent international case law, it has been noted that gender identification and sexual orientation are too unrelated for this to be suitable.

The International Commission of Jurists and the International Service for Human Rights in 2007 created the Yogyakarta Principles to apply international human rights law to gender identity and sexual oriention. The first and most arguably most important is that human rights are available to all humans, regardless of gender identity, and that states should amend legislation “to ensure its consistency with the universal enjoyment of all human rights.”

This report suggested that transgender people were “one of the most marginalised groups” in New Zealand, leading the Human Rights Commission to publish a comprehensive inquiry entitled To Be Who I Am in 2008, which outlined some of the concerns listed below. These concerns are particularly important considering that the discrimination and exclusion towards transgender, inter-sex and gender non-conforming persons has been shown to increase the risk of mental health issues and suicide.

Same-sex relationships

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.

The Civil Union Act 2004 established the institution of civil unions for both 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.

Same-sex marriage

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 refused to pre-emptively ban same-sex marriage in case a future Parliament decided to approve it with an amended Marriage Act 1955. In December 2005, an abortive private member's bill failed at its first reading to do so. Until a marriage 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 private member's bill by Labour MP Louisa Wall which proposed defining marriage to be inclusive regardless of gender was drawn from the ballot. The bill passed its first reading on 29 August 2012, 80 votes in favour to 40 opposed (with one abstention). Preliminary reports evidenced widespread support for same-sex marriage both within Parliament (notably from Prime Minister John Key) and amongst the general public, with polls conducted in May 2012 indicating 63% support. 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. 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.

Discrimination protections

The Human Rights Act 1993 outlaws discrimination on the grounds of sexual orientation and, implicitly, gender identity/expression. Initially this law temporarily 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 New Zealand 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. 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 twelve months 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.

Intersex rights

New Zealand laws and policies that prohibit female genital mutilation explicitly permit "normalizing" medical interventions on intersex infants and girls. Material presented by the Australasian Paediatric Endocrine Group to the Australian Senate in 2013 showed New Zealand to be a regional outlier in surgeries in cases of congenital adrenal hyperplasia, with genital surgical interventions favoured on infant girls aged less than 6 months. In October 2016, the UN Committee on the Rights of the Child issued observations on practices in New Zealand, including recommendations to ensure "that no one is subjected to unnecessary medical or surgical treatment during infancy or childhood, guaranteeing the rights of children to bodily integrity, autonomy and self-determination". A 2016 Intersex Roundtable by the Human Rights Commission on genital "normalizing" surgeries found that there was a lack of political will to address surgeries, and concerns with service delivery to parents and families, the development of legislative safeguards, and a need to test the right to bodily autonomy against the Bill of Rights Act.

New Zealand passports are available with an 'X' sex descriptor. These were originally introduced for people transitioning gender. Birth certificates are available at birth showing "indeterminate" sex if it is not possible to assign a sex.

Adoption and parenting

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 of any sex and couples in a civil union can now jointly adopt children, under a New Zealand High Court ruling in December 2015. The ban breached the New Zealand Bill of Rights Act 1990. 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, 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. 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)

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. 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

New Zealand has a hate crimes clause which includes sexual orientation and gender identity/expression, Section 9(1)(h) of the Sentencing and Parole Act 2002, although it has not yet been invoked in the context of a hate crime against an LGBT person. 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.

Politics

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.

A number of openly gay or lesbian politicians have served in New Zealand's Parliament. 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 LGBT people.

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.

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

Pride events

Gay pride events are legal in New Zealand and were first held in the 1970s. The Hero Parade, the showpiece of the Hero Festival in Auckland, was held annually between 1992 and 2001. Parades were typically attended by more than one hundred thousand people (and at its height, by as many as two hundred thousand), The Hero Festival continues to this day, usually without a flagship parade. 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.

In Tokelau, Niue and the Cook Islands

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. Homosexual acts are criminalised 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.