| Click here for a summary of Tonga’s review at the first cycle and/or the second cycle. |
29th UPR session
Date of review: 29 January 2018
Date of report adoption: 28 June 2018
Document number: A/HRC/38/5
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SUMMARY SOGIESC issues during Tonga’s 3rd UPR review |
I. SOGIESC issues/recommendations identified by NGOs and other stakeholders
Equality and non-discrimination
14. JS1 noted that there were increasing concerns of bullying suffered by Lesbian, Gay, Bisexual and Transgender (LGBT) students in schools and within their own families. The Ministry of Education, as well as other line Ministries, were reportedly usually hesitant to implement any policy or measures to promote and protect the human rights of LGBT students. JS1 recommended that Tonga make readily available information on LGBT to students in all schools in Tonga. It also recommended that Tonga enforce anti-bullying measures to protect LGBT students as it considered that it was as much a priority as any other issue.
National human rights framework
11. JS1 stated that the Constitution of Tonga prohibited discrimination based on class, religion, race, but it did not recognize discrimination based on gender. It added that the National Policy on Gender and Development had been formulated in 2001 and was revised in 2014, but it faced the common challenge of budget constraints that limited the capacity of implementation. JS1 recommended that gender be included as a ground to prohibit discrimination in the Constitution of Tonga, and that gender equality be prioritized within the Tonga Strategic Development Framework along with adequate budget commitments.
II. Excerpts on SOGIESC issues from the national report
Promote equality between sexes and discriminatory treatment related to sexual orientation or gender identity
87. Tonga hosted a Pacific LGBTQI Human Rights Conference in May 2015. The theme of this conference was “Our voices, our Communities, our Rights: Advancing Human Rights related to Sexual Orientation, Gender Identity & Expression in the Pacific”.
88. The Tonga Leiti’s Association was established in 1992 with a focus on improving the rights and celebrating the contribution of Leitis in Tonga and to respond to the HIV epidemic. The Association launched their Strategic Plan 2016-2020 in 2016. The vision of the Plan was for Tonga to respect and uphold the rights of person with diverse sexual orientations and gender identities.
89. One of the main goals of the Plan was to reduce stigma and discrimination against Leitis and People Living with HIV. The Plan also aims to educate and advocate on international human rights law, recent international developments and agreed principles such as the Yogyakarta Principles.
90. Tonga Leitis Association continued to host a National Consultation with the theme “Together for a positive change – Leave no one behind” on October 2016. The Conference covered topics which included the impact of current legislation on Leitis Living in Tonga and the impact of legislation changes on the communities.
91. In March 2017, the Tonga Leiti Association started a campaign in Tongan schools to try and reduce bullying of transgender students.
92. In October 2017, the Tonga Leitis Association conducted Trans Health Blueprint Workshop with the theme Transgender people should have access to good quality health care in Tonga. This aim of the workshop is to educate trans men and trans women on their health rights in the community.
III. Excerpts on SOGIESC issues by UN agencies
Scope of international obligations and cooperation with international human rights mechanisms and bodies
3. The United Nations country team stated that, in March 2015, the Cabinet had approved the process of ratification of the Convention on the Elimination of All Forms of Discrimination against Women, with a number of reservations pertaining to the accession to the throne, nobility, abortion and same-sex marriage. Progress had stalled due to public protest, particularly by women religious leaders associated with the church. In February 2017, the then Prime Minister called for public consultations on ratification with the participation of local women’s groups, given that the country was divided over the subject.
Equality and non-discrimination
12. The United Nations country team noted that the Criminal Offences Act (1988) still criminalized same-sex sexual relations between consenting adults and carried a maximum penalty of 10 years’ imprisonment and, at the court’s discretion, the use of corporal punishment. The 1988 Constitution of Tonga, while containing a declaration of rights that provided for equality before the law (clause 4), did not refer to freedom from discrimination, nor did other laws exist ensuring protection from discrimination on grounds of sexual orientation and gender identity.
13. The United Nations country team added that Tongan culture was supportive of transgender and gender-diverse people and had a strong traditional leiti (or fakaleiti) community. The Tonga Leitis Association was well respected and had the support of the Tongan royal family. Nonetheless, leitis enjoyed no legal recognition and cross-dressing remained a crime under section 81 (5) of the Criminal Offences Act. Under section 136 of the Act, a person convicted of sodomy could be sent to prison for up to 10 years. In December 2016, the Tonga Leitis Association had held a national consultation with the Government to revise criminal laws to protect lesbian, gay, bisexual, transgender and intersex persons. However, legal reform in this area was yet to occur.
14. Stressing that during the second cycle of the universal periodic review, Tonga had accepted the recommendation to strengthen measures to eliminate all discriminatory treatment related to sexual orientation and gender identity, the United Nations country team recommended that Tonga commit to equality and non-discrimination by repealing the provisions of the Criminal Offences Act that criminalized same-sex sexual relations between consenting adults, combat discrimination against them and prevent violence by raising public awareness of the situation of lesbian, gay, bisexual, transgender and intersex persons.
Right to life, liberty and security of person
18. The United Nations country team noted that sexual and gender-based violence, including intimate-partner violence, sexual assault and rape, and violence against transgender persons, was widespread.
IV. References to SOGIESC issues during the Working Group review
36. Tonga acknowledged the right of its “leiti” community to raise public awareness, educate and organize programmes and projects to highlight the concerns and issues of lesbian, gay, bisexual, transgender, intersex and questioning persons. However, the historical cultural and religious beliefs of Tonga, although tolerant, did not recognize the legal status of same-sex relationships. The Tonga Leitis Association had been established in 1992 with a focus on improving the rights and celebrating the contribution of leitis in Tonga and on responding to the HIV pandemic. In 2016, it had launched a strategic plan for the period 2016–2020, with a vision for Tonga to respect and uphold the rights of persons with diverse sexual orientations and gender identities. One of the main goals of the plan was to reduce stigma and discrimination against leitis and people living with HIV. It also aimed to educate and advocate on international human rights law, recent international developments and agreed principles, such as the Yogyakarta Principles on the Application of International Human Rights Law in relation to Sexual Orientation and Gender Identity.
56. Germany commended Tonga on its recent accession to the International Labour Organization. It expressed concern about the human rights situation of women and other vulnerable groups, including people with disabilities and lesbian, gay, bisexual, transgender and intersex persons.
70. The Netherlands welcomed efforts to raise awareness about the issue of child marriage. It remained concerned about the position of lesbian, gay, bisexual, transgender and intersex persons in Tonga, while urging the Government to take further measures in that regard.
80. Timor-Leste welcomed the adoption of a New Education Act that provided for compulsory education between the ages of 4 and 18 years, and established the principle of inclusive education for children with special needs. It expressed concern about the cases of discrimination on grounds of sexual orientation and gender identity while commending Tonga for hosting in May 2015 a Pacific human rights conference on lesbian, gay, bisexual, transgender, intersex and questioning persons.
83. The United Kingdom of Great Britain and Northern Ireland encouraged Tonga to ratify the core human rights conventions and to establish a national human rights institution in accordance with the Paris Principles. It welcomed the efforts by Tonga to promote female candidates in national elections. However, it noted that female participation in Tongan politics remained low while encouraging Tonga to further promote the inclusion of women in politics. It expressed concern that Tongan legislation continued to criminalize consensual same-sex conduct, while noting that there had been no recent prosecutions under the legislation. It urged Tonga to repeal all such provisions and ensure anti-discrimination laws also covered sexual orientation. It also welcomed the country’s membership of ILO in 2016 while encouraging Tonga to ratify the key ILO conventions.
84. The United States of America welcomed the recent successful national elections and the announcement by Tonga that it would open a free legal centre for women who were survivors of sexual or domestic violence. It encouraged Tonga to decriminalize lesbian, gay, bisexual, transgender and intersex status and conduct, increase free legal aid and implement policies to increase women’s participation at all levels of government.
85. Uruguay welcomed efforts by Tonga to combat trafficking in persons, and its consideration of acceding to various international human rights instruments. While noting that the Constitution of Tonga prohibited discrimination on the basis of social class, religion and race, but did not define or recognize discrimination based on gender or other grounds, Uruguay expressed the hope that gender and sexual orientation could be included as prohibited grounds of discrimination.
V. Conclusions and/or recommendations
Tonga noted the following recommendations:
94.36 Introduce comprehensive anti-discrimination legislation to provide equal protection for all persons, including vulnerable groups like people with disabilities, and on all grounds, including sexual orientation and gender identity (Germany);
94.37 Decriminalize consensual same-sex relations (Germany); 94.38 Decriminalize consensual sexual relations between adult persons of the same sex (Honduras);
94.39 Repeal legislation that criminalizes same-sex sexual practices between consenting adults and increase efforts to eliminate all forms of discrimination that target individuals based on their sexual orientation and gender identity (Canada);
94.40 Adopt specialized laws that allow the creation of mechanisms to combat sexual and gender-based violence, as well as discrimination based on sexual orientation and gender identity (Mexico);
94.41 Enact new legislation or amend existing laws with a view to decriminalizing same-sex relations between consenting adults (Montenegro);
94.42 Introduce comprehensive anti-discrimination legislation to provide equal protection against discrimination for all persons and on all grounds, including sexual orientation or gender identity (Netherlands);
94.43 Revise the Criminal Offences Act in order to decriminalize sexual relations between consenting adults of the same sex (Portugal);
94.44 Continue working together with the leitis (lesbian, gay, bisexual, transgender and intersex persons) civil society organization to adopt the necessary reforms to eradicate discrimination based on sexual orientation or gender identity (Chile); 94.45 Repeal the provisions of the Criminal Offences Act that criminalize same-sex sexual relations between consenting adults (Timor-Leste);
94.46 Repeal the provisions of the Tongan Criminal Offences Act that criminalize lesbian, gay, bisexual, transgender and intersex status and conduct (United States of America);
94.47 In follow-up to the recommendation made in 2013, take urgent measures to repeal the norms and regulations that sanction and discriminate against lesbian, gay, bisexual, transgender and intersex persons, as well as to investigate and sanction the perpetrators of acts of discrimination and violence towards those persons (Argentina);
VI. Further information
You will find all documents relating to Tonga’s third review at UPR-Info and OHCHR’s websites.