Pacific Community Human Rights and Social Development Division
a regional human rights organisation working to advance the rights of all people, including LGBT people in the Pacific.
Types of criminalisation
- Criminalises LGBT people
- Criminalises sexual activity between males
Summary
Same-sex sexual activity is prohibited under the Penal Code, which criminalises acts of ‘buggery’ and ‘gross indecency’. These provisions carry a maximum penalty of fourteen years’ imprisonment. Only men are criminalised under this law.
The law was inherited from the British during the colonial period, in which the English criminal law was imposed upon Tuvalu. Tuvalu retained the provision upon independence and continues to criminalise same-sex sexual activity today.
There is no evidence of the law being enforced, and it appears to be largely obsolete in practice. Nevertheless, the mere existence of this provision is itself a violation of human rights and underpins further acts of discrimination (see further). There have been few reports of discrimination and violence being committed against LGBT people in Tuvalu, though this is likely attributable to the remoteness of the country and societal stigma which inhibits the availability of information.
Law and Legal Developments
2023
In September, the Parliament of Tuvalu approved various Constitutional amendments, including a Bill of Rights which guarantees freedom from discrimination on the basis of sex. However, the Constitution does not contain any explicit protection against non-discrimination on the basis of sexual orientation and gender identity.
The new amendments came into force in October.
2017
Tuvalu introduced the Labour and Employment Relations Act, which includes a prohibition on employment-based discrimination on grounds of sex and sexual orientation.
2015
In August, the United Nations launched a Pacific campaign against homophobia and transphobia. The initiative is a spin-off of the global United Nations Free & Equal Campaign led by the UN Human Rights Office. The launch event was attended by government representatives from Tuvalu.
2011
Tuvalu was a signatory to the 2011 Human Rights Council Joint Statement to end acts of violence based on Sexual Orientation and Gender Identity.
Criminal Provisions
Penal Code, Section 153 Unnatural Offences
Section 153 criminalises ‘buggery’ between men with a punishment of fourteen years’ imprisonment.
Penal Code, Section 154 Attempts to Commit Unnatural Offences and Indecent Assault
Section 154 prohibits attempts to commit the offences listed in section 153 with a penalty of seven years’ imprisonment.
Penal Code, Section 155 Indecent Practice Between Males
Section 155 criminalises acts of ‘gross indecency’ between males with a penalty of five years’ imprisonment.
Sexual Offence Law Assessment
We’ve also assessed Tuvalu’s sexual offence laws against international human rights standards. Not only does Tuvalu criminalise same-sex sexual activity, it also fails to properly protect other vulnerable groups, such as women, children, and people with disability, from sexual offences.
Enforcement
2023
During Tuvalu’s fourth Universal Periodic Review, Amnesty International reported that despite there being no evidence of the government enforcing the criminalising provisions, they need to be repealed to ensure the safety of LGBT people.
2022
The US Department of State Country Report on Human Rights Practices, found that there were no reports that the government enforced the laws criminalising consensual sexual activity between men. This finding has been consistent in previous reports.
Discrimination and Violence
2023
In light of Tuvalu’s Constitutional amendments, Amnesty International reported that the lack of protection against non-discrimination on the basis of sexual orientation and gender identity remains challenging for the country’s LGBT community.
During Tuvalu’s fourth Universal Periodic Review, the UN Special Rapporteur in the field of cultural rights expressed concern about the lack of any specific legal framework protecting LGBT people, and indicated that societal prejudices towards them remained. The United Nations country team recommended that Tuvalu amend or repeal laws that discriminated on the grounds of sexual orientation and gender identity and adopt policy and legal measures to combat such discrimination.
2022
The US Department of State Country Report on Human Rights Practices noted that there were no reports of violence on the basis of sexual orientation and gender identity during the year, but that social stigma or intimidation may inhibit reporting. This finding has been consistent in previous reports.
References
1. Penal Code, Section 153 Unnatural Offences
“Any person who —
(a) commits buggery with another person or with an animal; or
(b) permits a male person to commit buggery with him or her,
shall be guilty of a felony, and shall be liable to imprisonment for 14 years.” Full text.
2. Penal Code, Section 154 Attempts to Commit Unnatural Offences and Indecent Assault
“Any person who attempts to commit any of the offences specified in the last preceding section, or who is guilty of any assault with intent to commit the same, or any indecent assault upon any male person shall be guilty of a felony, and shall be liable to imprisonment for 7 years.” Full text.
3. Penal Code, Section 155 Indecent Practice Between Males
“Any male person who, whether in public or private, commits any act of gross indecency with another male person, or procures another male person to commit any act of gross indecency with him, or attempts to procure the commission of any such act by any male person with himself or with another male person, whether in public or private, shall be guilty of a felony, and shall be liable to imprisonment for 5 years.” Full text.
Local Organisations
Pacific Sexual and Gender Diversity Network
a regional network advocating for the rights of LGBT people across the Pacific.
Related Countries
Samoa
Samoa criminalises same-sex sexual activity between men. Sentences include a maximum penalty of five years’ imprisonment.
Tonga
Tonga criminalises same-sex sexual activity between men and between women. Sentences include a maximum penalty of ten years’ imprisonment.
Solomon Islands
The Solomon Islands criminalises same-sex sexual activity between men and between women. Sentences include a maximum penalty of fourteen years’ imprisonment.
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Reform of Discriminatory Sexual Offences Laws in the Commonwealth and Other Jurisdictions – Case Study of The Republic Of Nauru
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