LGBTI+ rights in Aotearoa New Zealand: the past and the future

From the outset of colonial governance, male same-sex intimacy was treated as a serious criminal offence. English statutes imported into Aotearoa New Zealand criminalised such conduct with extreme penalties, initially including death, later replaced by long-term imprisonment and hard labour. These laws did not simply regulate sexual acts; they portrayed male homosexuality as a moral threat.

Over time, criminalisation was not merely inherited but domesticated and reinforced. New Zealand’s own criminal codes retained life imprisonment for male same-sex intimacy and, at points, added corporal punishment. Alongside “core” sexual offences, public order legislation such as vagrancy and disorder provisions enabled indirect policing of sexuality and gender nonconformity, particularly in public spaces.

Twentieth-century reforms removed the most overtly brutal penalties but left the underlying structure intact. By the mid-twentieth century, consensual sex between adult men remained criminalised, punishable by imprisonment, and accompanied by offences targeting the social infrastructure of gay life, including meeting places and venues. Sex between adult women, by contrast, was never criminalised, reflecting not tolerance but legal invisibility.

The Crimes Act 1961 consolidated this regime. It established a layered framework criminalising indecency between males, sodomy, and the keeping of places used for homosexual acts. Together, these provisions show that the state’s concern extended beyond conduct to the formation of gay community and association.

At the same time, early moves toward statutory non-discrimination emerged in the 1960s, most notably in the Sale of Liquor Act 1962, which prohibited discrimination on certain grounds in hotels and bars (and similar establishments). Sexual orientation was conspicuously absent, leaving open discrimination against lesbians and gay men even as other forms of exclusion were regulated.

The 1968 petition to Parliament by the New Zealand Homosexual Law Reform Society marked the first comprehensive challenge to criminalisation. Drawing explicitly on developments in the United Kingdom, the petition framed reform as a matter of rational lawmaking rather than moral endorsement. It emphasised privacy, consent, internal inconsistency in the law, the human suffering caused by criminalisation, and uneven enforcement.

The Department of Justice’s response acknowledged many of these critiques, including the lack of demonstrable social harm, the risk of blackmail, and the haphazard nature of enforcement. However, it declined to recommend reform. Parliament reported the petition back without recommendation, and criminalisation remained unchanged.

Throughout the 1970s, the debate continued in Parliament, the legal academy, and civil society. Academic exchanges highlighted a growing divide between humanitarian, rule of law arguments for reform and, moral justifications for retaining criminal sanctions.

Between 1974 and 1980, several Members’ Bills sought to decriminalise consensual male same-sex intimacy. These proposals consistently adopted partial reform models, typically decriminalising private adult conduct while retaining unequal ages of consent, enhanced penalties for paedophilia (signalling an unfair connection between homosexuality and paedophilia), and exceptions for institutions such as Police and the armed forces.

These bills exposed deep strategic divisions within the gay rights movement. While some advocates supported incremental reform as a pragmatic step forward, others, particularly the National Gay Rights Coalition, rejected any reform that entrenched inequality. For these activists, unequal ages of consent were not compromises but legislative declarations of inferiority. They warned that partial reform risked stagnation by allowing Parliament to claim progress while structural discrimination persisted.

These divisions proved decisive. Successive bills collapsed either in Parliament or before introduction.

As criminal law reform stalled, advocacy increasingly turned toward anti-discrimination law. Submissions to include sexual orientation in the Human Rights Commission Act 1977 were rejected, despite comparative precedents and medical consensus that homosexuality was not a psychological disorder.

The Human Rights Commission itself declined to recognise sexual orientation as a protected “status” under international human rights law, adopting a narrow interpretation. While the Commission acknowledged some internal inconsistencies in the criminal law, it refused to treat homosexuality as a human rights issue, prompting strong criticism from gay and lesbian organisations. The Government accepted the Commission’s position, leaving sexual orientation unprotected throughout the late 1970s and 1980s.

The Homosexual Law Reform Act 1986 marked the turning point. Following nearly two decades of sustained advocacy, Parliament decriminalised consensual male same-sex intimacy and repealed provisions that targeted gay social spaces.

However, the Act reflected enduring compromise. Provisions prohibiting discrimination on the ground of sexual orientation were removed during the legislative process, and exemptions were retained for Police and the armed forces. While decriminalisation was achieved, equality was deferred.

The early 1990s saw renewed focus on discrimination. Reports by the Human Rights Commission documented widespread exclusion of lesbians and gay men, and linked legal protection to effective HIV prevention. Despite this, attempts to include sexual orientation in the New Zealand Bill of Rights Act 1990 failed.

Comprehensive protection was finally achieved through the Human Rights Act 1993, following the adoption of a Supplementary Order Paper adding sexual orientation and having HIV as prohibited grounds of discrimination. Attempts to dilute the amendment were rejected, establishing a non-discrimination framework for sexuality, though not explicitly for gender identity or being intersex.

From the mid-1990s onward, legislative reform shifted toward relationship recognition. Same-sex partners were gradually included across discrete statutes, and the Law Commission played a central role in articulating coherent models for recognition. While rejecting marriage reform, the Commission endorsed registered partnerships as a means of achieving substantive equality without redefining marriage.

This and other work culminated in the Civil Union Act 2004 and a suite of accompanying amendments, followed by extensive reforms equalising relationship property, succession, and parental status. Criminal law reform during this period also addressed hate-motivated offending and removed doctrines that had legitimised prejudice.

The Marriage (Definition of Marriage) Amendment Act 2013 completed the transition to formal equality in relationship recognition. Later in the decade, the state moved beyond prospective reform to address historical injustice through the Criminal Records (Expungement of Convictions for Historical Homosexual Offences) Act 2018, acknowledging the harm caused by criminalisation itself.

Efforts to secure explicit protection for transgender and intersex people have followed a more uneven path. While legal opinion suggested existing protections might suffice, repeated attempts to amend the Human Rights Act to include gender identity were unsuccessful. In practice, discrimination persisted, as documented in the Human Rights Commission’s landmark Transgender Inquiry.

The Births, Deaths, Marriages, and Relationships Registration Act 2021 marked a significant shift to self-identification for sex registration, and the Conversion Practices Prohibition Legislation Act 2022 recognised conversion practices as inherently harmful. At the same time, the 2020s have seen renewed political contestation, including bills seeking to define sex in biological terms or restrict access to gender-affirming spaces.

In 2025, the Law Commission concluded that the Human Rights Act remains inadequate in its protection of transgender, non-binary, and intersex people, recommending explicit new prohibited grounds and reform of existing exceptions.