Vanuatu Culture and the Politics of Homophobia

1. Vanuatu Culture and the Politics of Homophobia Anita Jowitt USP School of Law Jowitt_a@vanuatu.usp.ac.fj

2. What is Homophobia? • Phobia = fear; Homo = same • Fear of people with sexual identity based on same sex attraction • Fear leads to discrimination • Homophobia => stigma and discrimination based on non-heterosexual sexual identity or non-binary gender identity

3. What do I see in Vanuatu? • Stigma and discrimination by official institutions • Stigma, discrimination, ignorance by individuals

4. Adoption case: 2014 • In re MM, Adoption Application by SAT [2014] VUSC 78 http://www.paclii.org/vu/cases/VUSC/2014/78.html • Gay man in relationship in New Caledonia wanted to adopt child; applied for 3 month guardianship trial • Biological parents agreed • preliminary approval to adopt from the Department des Actions Sanitaires et Sociales. • Favourable report from New Caledonia social worker • Favourable report for New Caledonia psychologist • Favourable report from Vanuatu psychologist • Court said NO to the adoption

5. Court’s reasoning • Position of Malvatumauri is that adoption by same sex couples is against Vanuatu custom. • adoption of a ni-Vanuatu child by a gay person is not tolerable because it could cause moral impacts on the child concerned because of the situation of same sex household or marriage does not suit the context of social living in Vanuatu." (President of Malvatumauri) • Lawyer said that custom breaches Article 5 of the Constitution which guarantees equal treatment under the law of everyone and non-discrimination • Court’s position: • ‘If custom says something adverse about his application because he is homosexual, that does not amount to unequal treatment before the law. • SAT is not being denied equal treatment under the law but his application, like anyone else's, has to be considered in light of customary matters... • As to whether article 5 of the Constitution guarantees that there is no discrimination on the ground of sexual orientation, in the absence of detailed argument on the point, it seems to me that that kind of discrimination may not be prevented in Vanuatu... • discrimination on the ground of "sex" is a different thing from discrimination on the grounds of sexual orientation. On the face of it then, Article 5 may not provide entitlement to freedom from discrimination on the ground of sexual orientation.

6. Other LGBTIQ in court? • Almost invisible • One case that reports on violence against lesbians being prosecuted • Public Prosecutor v Tusi Rose [1998] VUSC 86 • Do people not complain because they are scared of the response of police/community?

7. Gay marriage • October 2013: Same-sex marriage of tourists at a resort (not a legally binding Vanuatu marriage but people coming here to celebrate event) • Presbyterian Church opposed • Then Minister of Internal Affairs opposed • Malvatumauri opposed • http://www.gaystarnews.com/article/vanuatu-government-warns-against-holding-same-sex-weddings151013/#gs.HmeB8qs

8. VFoundation • Vanuatu Christian Council opposed; calls on churches, custom leaders and government ‘to work together to address this’ • http://www.radionz.co.nz/international/programmes/datelinepacific/audio/2596089/vanuatu-churches-will-not-accept-lgbt-community-bishop • And why is Radio NZ broadcasting homophobic hate-speech?

9. Older examples • Repealing residency permit of gay accompanying partner on grounds of Christian principles: 1997 • http://www.paclii.org/journals/fJSPL/vol01/vol01_hicks_jowitt_human.shtml • Response to groups of gay tourists by Malvatumauri as being against culture and religion: 1998 • http://www.austlii.edu.au/au/journals/AltLawJl/2005/3.html

10. Is Christianity opposed to LGBTIQQ? • There are LGBTIQQ positive responses • The Golden Rule, from the Sermon on the Mount: • “Do unto others as you would have others do unto you” • If you want to be treated with respect and dignity treat all others with respected and dignity

11. Is same sex sexual behaviour found in custom? • Yes • Not well documented, but in anthropological writings • Some ritual centred • Some relationship centred • Same sex behaviour in custom ritual ≠ gay in Western sense

12. Why is it that culture, chose to align itself with Christianity in a very conservative response to sexuality?

13. MODERNISATION “Colonial” Individualist Citizenship Democratic CUSTOM “Local” Communitarian Kinship Stateless order CHRISTIANITY “Colonial” Communitarian Congregation Religious hierarchy CULTURAL SYMBIOSIS

14. Sexuality and the symbiotic relationship • Incursion of concept of Western family unit into culture means that custom is becoming aligned with modern Western thinking? • Traditional taboos on the discussion of sex in general public exist • Western concept of homosexuality means that sex is visible(ised). This concept therefore breaches customary taboos

15. Ways forward: culture changing • Culture is dynamic, not static • HIV/AIDS providing an avenue to talk about sexual health • Civil society mobilisation in the Pacific • V Foundation • Regional Conference in Tonga 2013the Tonga conference 2013 • Law Reform Commission issues paper on marriage 2014

16. Vanuatu government commitment • Supported joint UN Human Rights Council statement on ending acts of violence and related human rights violations based on sexual orientation and sexual identity, 2011 • Repealed criminalisation of consensual homosexual acts with persons under 18, 2006

17. Dealing with stigma and discrimination • Lessons from HIV/AIDS • Top down and bottom up approaches • Find and work with as many allies as possible • Leveraging the global commitment? • http://www.ohchr.org/Documents/Publications/BornFreeAndEqualLowRes.pdf • Staying safe and supported