The Rainbow Crossing Court Case: An Attempt to Limit Queer Rights Through Traffic Regulation?
BY LUKE WANG
Introduction
In the heart of Wellington lies a rainbow crossing, red through purple painted across Dixon Street, where it intersects Cuba Street, a pedestrian-only mall. These six bright stripes are a staple landmark in the city of political movements, artistic freedom and diverse communities. Installed in 2018, the rainbow crossing was a way for the city to honour its LGBTQIA+ community through this simplistic yet striking art piece.
In 2025, three Wellington citizens sought judicial review against the Wellington Council and the New Zealand Transport Agency Waka Kotahi. They claimed that the rainbow crossing breached the Traffic Control Devices (TCD) Rule 2004 and was unsafe and misleading to pedestrians and drivers. The case of Roa v Wellington City Council reached the Wellington High Court seven years after the crossing’s installation and three years after Waka Kotahi’s prior safety concerns were resolved.
A history of the rainbow crossing
Before its installation in 2018, Waka Kotahi raised concerns that the crossing would not comply with their TCD Rules regarding pedestrian crossings. The Wellington Council insisted the rainbow crossing was intended as an art piece, not a pedestrian crossing, and therefore exempt from those requirements. This dispute regarding the crossing’s safety and compliance continued, years after the six offending colours in question had already been implemented.
In 2020, the TCD Rules were amended to allow roadway art in ‘lower risk environments’ where vehicles went less than 30km/h; the amendment clearly intended to legitimise the rainbow crossing’s existence.
In 2021, Waka Kotahi granted formal approval for the crossing as roadway art, satisfied the implemented safety measures ensured a reasonable likelihood of meeting the requirements of a ‘lower risk environment’.
The legislation
Clause 5.1 of the TCD rules establishes that markings are for regulatory, warning or advisory purposes. Clause 5.5 prohibits markings installed for the purpose of advertising or other purposes not connected with the use of the road, and this was later amended in 2020 to allow roadway art in lower risk environments. Clause 8.5 requires markings to be installed where traffic signals guide the movement of pedestrians. All three of these clauses were enacted to regulate road safety, and to prevent drivers and pedestrians alike being confused by misleading road markings.
The proceedings of the judicial review
Firstly, the High Court considered whether to apply the TCD Rules of 2018 when the crossing was installed, or the 2020 amended version applicable at the time of the case. The principle of non-retrospectivity requires laws to apply prospectively and not retrospectively. Justice McHerron clarified that nothing in the amendment properly authorised retroactively banning road markings installed under the 2018 Rules. Thus, the rainbow crossing was examined in consideration of the 2018 Rules at the time of its installation.
Under Clause 8.5, the Court found the rainbow stripes qualified as a roadway marking which guided pedestrian movement between the two traffic lights on either side of the crossing. The title ‘rainbow crossing’ also signalled its purpose of allowing pedestrian crossing at the light signals. This also satisfied Clause 5.5, as the crossing was deemed part of road use. Any assessment regarding whether the crossing constituted roadway art in a lower-risk environment under the amended version was therefore unnecessary.
The Court finally examined whether the crossing’s additional purpose of supporting Wellington’s LGBTQIA+ community was allowed under Clause 5.5. Section 6 of the New Zealand Bill of Rights Act 1990 (NZBORA) requires compliance with rights, such as Section 14’s right to freedom of expression, wherever possible. This additional purpose was assessed against the TCD Rules’ overall purpose of contributing towards a safe and efficient roading environment.
Observations and interviews at Cuba Street showed no evidence that the crossing contradicted this purpose by misleading people into believing it was a pedestrian crossing, as the applicants had claimed, with most people waiting for the cars to stop at the signal before crossing.
Thus, Justice McHerron ruled the additional purpose was allowed under Clause 5.5, preserving the right to freedom of expression. The rainbow crossing was deemed lawful, and the applicants were ordered to pay costs to the Council.
The motivations behind the case
Many may be wondering why these applicants chose to subject the rainbow crossing to judicial review when legality concerns between the Wellington Council and Waka Kotahi had been resolved three years prior, and the crossing itself had never been involved in an accident.
Investigating the applicants gives us a quickly expanding understanding of the true implications behind this case. Deanne Merania Roa, one of the applicants, was a 2023 election candidate representing the central right-wing political party Vision New Zealand. Some of their most notable ideologies include their ‘Two Genders Only’ policy which seeks to legally constrict gender definition to only male and female, abolish government-funded gender affirming surgeries, and remove and reverse any self-identification processes for gender on birth certificates.
Additionally, an initial member of the applicants for judicial review who later dropped out, Avataeao Junior Ulu, has been closely linked to the Destiny Church, a religious organisation that admitted to vandalising other rainbow crossings across Gisborne and Auckland. It comes as little surprise to learn that the leader of the Vision New Zealand party is also married to Brian Tamaki, the leader of Destiny Church, who led a mob of followers through Queen Street in June 2025, tearing and burning minority flags they deemed ‘satanic’ in their wake.
It becomes evident that the motivation behind the Roa case may go beyond pedestrian safety as claimed, with the possibility that the court case, seemingly about traffic regulations, was instead used as a vehicle to fuel a political campaign. To some, Roa appears as nothing more than an underhanded method for the applicants and the influential organisations behind them to strip away an iconic piece of queer expression within Aotearoa through the judicial system.
Yet, the right to justice and access to the courts belongs to everybody, to allow anyone to go to the courts and have their case properly considered, no matter how sceptical their motivations for doing so may be, and this is a principle right which has been correctly exercised in this case.
Queer rights in Aotearoa
It is heartening to see the High Court remain vigilant about protecting freedom of expression and upholding section 6 of NZBORA in the judgment of Roa. In the current shifting political climate in the rest of the world, judicial consideration of rights in the face of contentious political issues has unfortunately not been so good. One only needs to turn to the 2025 British case of For Women Scotland, where the Supreme Court waved off all considerations of breaches to transgender human rights in their consideration that ‘biological sex’ was the only possible definition of sex under the Equality Act 2010.
However, it’s important to note that Roa was framed by the applicants as a case for traffic regulations and safety concerns, without any mention of the queer expression and symbolism behind the crossing. Section 6 of NZBORA would be easier to uphold in a case where rights only arise incidentally, compared to a case where those rights are the central issue in question, with much more at stake for the judges who must balance those rights against other pressing factors.
In Hoban v Attorney-General, a 2022 case more focused on queer rights, the High Court ruled that hate speech against homosexuals was not covered by the Human Rights Act 1993, which makes hate speech against other groups unlawful. The absence was considered a justified limit on the right to freedom from discrimination, and this more politically charged topic was ultimately left to the discretion of Parliament.
Conclusion
While the courts play a vital role in upholding fundamental human rights, they are constrained by conflicting factors and a duty to remain apolitical in their judgment. The High Court in Roa succeeds in upholding queer rights, but the willingness of New Zealand’s judicial branch to continue doing so when the issue at hand is more political or contentious leaves something to be desired. Ultimately, the High Court’s decision in Roa v Wellington City marks a positive milestone on the road to queer liberty in New Zealand. We can only hope that the judicial branch, as well as the rest of the government, will continue progressing toward safeguarding human rights for the LGBTQIA+ community.
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