LGBT rights in Fiji

LGBT rights in Fiji
Fiji
Same-sex sexual activity legal?	Legal[1]
Discrimination protections	Yes, discrimination banned by the Constitution
Family rights
Recognition of relationships	No
Adoption	No

Lesbian, gay, bisexual and transgender (LGBT) people in Fiji may face legal challenges not experienced by non-LGBT residents. In 1997, Fiji became the second country in the world 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.

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.^[5][6][7]

In the same time, then Prime Minister Laisenia Qarase defended his nation's criminal laws against homosexuality as being based on the Bible.^[8][9] In contrast, then Vice President Ratu Joni Madraiwiwi stated that he felt that gay people have their right to privacy protected.^[10]

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.^[11]

Since 1 February 2010, private, adult, consensual and non-commercial male and female homosexual conduct is legal under the Crimes Decree 2010.^[12]

Recognition of same-sex relationships

Fiji family laws do not provide legal recognition of same-sex marriage or civil unions. Since 2002, the law expressly bans same-sex marriage.^[13][14]

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".^[15][16] In April 2013, a support group representing LGBT students, Drodrolagi Movement, called for a discussion on the issue.^[17] 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 should move to Iceland.^[18]

Discrimination protections

Discrimination in employment based on sexual orientation is banned in Fiji under the Employment Relations Promulgation 2007.^[19]

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.^[20][21]

In April 2013, the Attorney-General Aiyaz Sayed-Khaiyum stated that a new constitution, which is supposed to be finalized sometime in 2013, would ban discrimination based on sexual orientation.^[22] The Constitution was promulgated in September 2013 and includes a provision banning discrimination based on sexual orientation and gender identity or expression.^[23][24] Article 26 of the Constitution reads as follows:^[23]

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 included sexual orientation and gender identity in an anti-hate speech law as well as a law dealing with discrimination in certain businesses.

Blood donation

In April 2017, the Fijian Ministry of Health confirmed that gay and bi men are banned from donating blood.^[25] 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.^[26]

Social conditions

A majority of citizens affiliate with a Methodist or Catholic denomination, which traditionally views same-sex sexuality and transgenderism negatively. The third largest religious group, about 6% of the population, would be 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 the society.

Reports of hate crimes against LGBT people in Fiji are rare, although there has been one, possible, high-profile case of a same-sexcouple 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.^[27] Scott and Scrivener's story has become the subject of a 2008 New Zealand documentary, An Island Calling.^[28]

Social mores regarding sexual orientation and gender identity tend to be conservative, with little public support for LGBT rights.^[14] While some human rights activists do some low-key work on LGBT-rights concerns, the Government has cancelled gay pride marches from taking place.^[29] On 17 May 2013, the International Day Against Homophobia, Transphobia and Biphobia (IDAHOT), LGBT activists organised activities to promote LGBT rights and equality. Drodrolagi Movement, a LGBT advocacy group, said that discrimination and bullying remain a problem in Fiji.^[30] In 2017, an event celebrating IDAHOT was held in the capital of Suva. The event was attended by many LGBT activists as well as religious figures.^[31]

While not illegal, visitors are advised that public displays of affection are generally considered offensive.^[32]

Summary Table

Same-sex sexual activity legal	(Since 2010)
Equal age of consent	(Since 2010)
Anti-discrimination laws in employment only	(Since 2007)
Anti-discrimination laws in the provision of goods and services	(Since 2013)
Anti-discrimination laws in all other areas (Incl. indirect discrimination, hate speech)	(Since 2013)
Same-sex marriages
Recognition of same-sex couples
Stepchild adoption by same-sex couples
Joint adoption by same-sex couples
LGBT people allowed to serve openly in the military
Right to change legal gender
Access to IVF for lesbians
Commercial surrogacy for gay male couples
MSMs allowed to donate blood

References