LGBTQ rights in Niue

LGBTQ rights in Niue
Niue
Status	Male illegal (not enforced); female legal
Military	New Zealand's responsibility
Discrimination protections	No
Family rights
Recognition of relationships	No
Adoption	No

Lesbian, gay, bisexual, and transgender (LGBT) people in Niue face legal challenges not experienced by non-LGBTQ residents. Male same-sex sexual activity is illegal in Niue, although there is no recent instance of it being actively prosecuted.^[citation needed] Same-sex couples and households headed by same-sex couples are not eligible for the same legal protections available to opposite-sex married couples.

History

Similarly to the Cook Islands, Samoa and New Zealand, Niue possesses a traditional third gender population: the fiafifine (also known as the fakafifine). They have traditionally been accepted by Niuean society,[1][2] and would play an important domestic role in communal life.

In 2007, during a gathering of delegates from around the Pacific in Māngere, New Zealand, a local fiafifine called out the discrimination and stigma faced by the fiafifine community: "Our communities were an accepted part of Pacific life and culture prior to Western colonisation, but have been subject to much stigma and discrimination in more recent times."[3]

Laws regarding same-sex sexual activity

Criminal Law Code

Male homosexual activity is illegal in Niue. Consensual male sodomy is punishable by up to ten years' imprisonment, while indecency between males is punishable by up to five years' imprisonment.[4] This is officially the only part of the Realm of New Zealand to still formally criminalise gay sex ever since the Cook Islands legalised it in 2023.[5][6]

43 Buggery

(1) Every one is liable to imprisonment for 10 years who commits buggery either with a human being or with any other living creature.

(2) This offence is complete upon penetration.

44 Attempted buggery and indecent assaults on males

(1) Every one is liable to imprisonment for 5 years who –

(a) Attempts to commit buggery; or

(b) Assaults any person with intent to commit buggery; or

(c) Being a male, indecently assaults any other male person.

(2) It is no defence to a charge of indecent assault on a male person of any age that he consented to the act of indecency.

Recognition of same-sex relationships

Same-sex unions are not recognised (even though they are in New Zealand).[7] The Family Law Code 2007 does not expressly prohibit same-sex marriages, but generally assumes the parties to be of the opposite sex. The law forbids marriages within the degrees of consanguinity and marriages where the wife is less than 15 years of age and the husband less than 18 years of age, but makes no mention of same-sex partners. Marriages are recorded by the Registrar of the High Court (Letititala he Fakafiliaga Lahi), or any minister of religion or other person who has been appointed as a marriage officer.[8]

Living conditions

Much like the rest of Polynesia, open displays of affection between partners regardless of sexual orientation may offend.[9]

Summary table

Same-sex sexual activity legal	(For males; not enforced) (For females)
Equal age of consent	(For males) (For females)
Anti-discrimination laws in employment only
Anti-discrimination laws in the provision of goods and services
Anti-discrimination laws in all other areas (Incl. indirect discrimination, hate speech)
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	(New Zealand's responsibility)
Right to change legal gender
Access to IVF for lesbians
Commercial surrogacy for gay male couples
MSMs allowed to donate blood

See also

• Human rights in Niue
• LGBTQ rights in New Zealand
• LGBTQ rights in Oceania

References

1. p. 1. Defining gender diversity
2. Frequently Asked Questions: Sexual orientation, gender identity and intersex status in the Pacific
3. Pacific Island Sexual Minority Gathering
4. "Criminal Law Code" (PDF). Niue Legislation 2019 Volume 1. p. 542.
5. "Pacific region lags in LGBTQ rights despite Cook Islands ending gay sex ban". South China Morning Post. 25 April 2023. Archived from the original on 2 June 2023.
6. "Cooks islands pass bill to stamp out discrimination against the LGBT community". ABC Pacific. 16 April 2023. Retrieved 11 October 2023.
7. State-sponsored Homophobia A world survey of laws prohibiting same sex activity between consenting adults Archived 17 July 2013 at the Wayback Machine
8. "Family Law Code 2007". paclii.org. Retrieved 14 May 2020.
9. Lonely Plant, lesbian travel in the South Pacific