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Gender on the EdgeTransgender, Gay, and Other Pacific Islanders$
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Niko Besnier and Kalissa Alexeyeff

Print publication date: 2014

Print ISBN-13: 9780824838829

Published to Hawaii Scholarship Online: November 2016

DOI: 10.21313/hawaii/9780824838829.001.0001

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Outwith the Law in Samoa and Tonga

Outwith the Law in Samoa and Tonga

(p.347) Chapter 15 Outwith the Law in Samoa and Tonga
Gender on the Edge

Sue farran

University of Hawai'i Press

This chapter argues that transgender Pacific Islanders in Samoa and Tonga remain beyond or “outwith” the law in a number of ways and yet also within it when the boundaries shift. It considers certain domestic laws, including family law and criminal law, that may adversely affect the legal status of fa'afafine and fakaleitī, along with human rights and other comparative legal developments elsewhere. Noting shifts in the boundaries of inclusiveness versus exclusiveness of the laws of other countries, the chapter also examines whether legal changes experienced elsewhere could be introduced into Samoa and Tonga and evaluates the possible challenges and consequences of such an action. It shows that there is limited scope to bring transgender people within the law in Tonga and Samoa. Finally, it discusses the implications of legal transplants for fa'afafine and fakaleitī.

Keywords:   transgender, Samoa, Tonga, family law, criminal law, legal status, fa'afafine, fakaleitī, human rights, legal transplants

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