By Paula Gerber

This piece is featured in the 2015 Castan Centre Human Rights Report. We will be featuring the articles on the blog throughout the month of May. 

Most of us know that lesbian, gay, bisexual and transgender (LGBT) people face dire threats in countries like Russia, Uganda, Nigeria and Iran.  The media is filled with stories of persecution, imprisonment and even death for people who dare to engage in same-sex conduct or identify as a gender different to the one they were assigned at birth. Yet right on our doorstep we have countries that still criminalise homosexual conduct.

Many people are surprised that some of our most idyllic holiday destinations consider gays to be criminals.  In all, eight Pacific nations still have laws relating to ‘crimes’ such as sodomy, buggery and offences against the order of nature, including:

• Cook Islands;
• Kiribati;
• Nauru;
• Papua New Guinea;
• Samoa;
• Solomon Islands;
• Tonga; and
• Tuvalu

Most of these nations are members of the Commonwealth and their laws can be traced back to the British Empire. In many of these countries, the laws are historic relics that have not been enforced for years, or even decades. So do we need to worry about these laws if no one is actually being prosecuted? The answer is a resounding ‘Yes’!

Laws send a message to society about what conduct is acceptable and what will not be tolerated.  Classifying homosexuality as a crime, even if it is not enforced, has a chilling effect on LGBT communities. It is a grey cloud hanging over them and they live with the knowledge that they can be arrested at any time.

The United Nations Human Rights Committee made it very clear in Toonen v Australia that laws criminalising homosexual conduct violate human rights, regardless of whether anyone is actually arrested or convicted.

When homosexuality is a crime, some people feel that it is legitimate to discriminate against LGBT people, because the state does. Furthermore, in some countries, it is not simply a case of old disused laws that no one has got around to repealing.  The existence of these laws in 2015 is due to a conscious decision to retain them. Samoa enacted a new Crimes Act in 2013, and while the new Act did away with offences relating to cross-dressing, following effective lobbying by the Samoan Fa’afafine Association (Fa’afafine are third gendered people, usually men, who live as women), the offence of sodomy was retained.

In 2008, the Solomon Islands Law Reform Commission recommended repealing criminal laws prohibiting homosexual conduct but had to back away from the plan after vehement public objection. One opponent of the reform stated that ‘Legalizing gay and lesbian in the country would only encourage the breed of more,’ and the Solomon Islands is a ‘long time Christian country’ that should never think of legalizing gay sex.

These homophobic laws even have negative health impacts. One reason why Papua New Guinea may have one of the highest rates of HIV infections in the world, with 2% of the adult population being HIV positive, is that the ongoing criminalisation of homosexuality drives same-sex acts ‘underground’ and encourages risky behavior.

Those seeking repeal of these odious laws should consider advocating for change not on the grounds of equality and non-discrimination, but rather to improve health by reducing HIV rates, which would benefit all of society.

It is not all doom and gloom when it comes to LGBT rights in the Pacific. Palau decriminalised homosexuality in 2014, and Nauru and the Cook Islands both indicated to the UN Human Rights Council, at their Universal Periodic Reviews in 2011, that they are willing to repeal their anti-gay laws.

Furthermore, although homosexuality is not tolerated in many Pacific nations, third genders are often well respected members of the community. In Samoa, Fa’afafines are viewed as a traditional part of Samoan culture, and the same is true of Leitis in Tonga.

So while these countries are very open and accepting of diverse gender identities, they have some way to go when it comes to diverse sexual orientations (as does Australia, for although it decriminalised homosexual conduct, it still steadfastly refuses to recognise the right of same-sex couples to marry).

Australia should be playing a key role in improving  LGBT rights in our region. Our government is the largest donor to many Pacific nations and our voice carries considerable weight. Although the Government has worked with some countries to help them modernise their criminal laws, it must do more to protect the rights of LGBT people in the Pacific. The Castan Centre has encouraged the Government to be more proactive in this area, and will continue to do so.

The Castan Centre’s 2015 Annual Appeal is on now. Can you choose to support us with a donation?