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347 CHAPTER 15 Outwith the Law in Samoa and Tonga Sue Farran In Scotland, the term “outwith” is used to locate something or someone beyond the scope of a specific context or category. It is therefore an exclusionary term, but its boundaries may change depending on the context. I use the word in this chapter to engage with the focus of this book from a legal perspective. Globally transgender people have been “outwith” the law, but gradually, as the law’s boundaries have changed, some have been brought within the law and their transgender status given legal recognition . In Samoa and Tonga, transgender Pacific Islanders remain beyond or “outwith” the law in a number of respects and yet also within it when the boundaries shift, especially when the locality in which the law applies and the cultural mores that inform the law are taken into account. Reflecting on the legal environment in which fa‘afāfine and fakaleitī are situated, this chapter examines certain domestic laws in Samoa and Tonga, comparative legal developments elsewhere, and the international and national arena of human rights.Noting shifts in the boundaries of inclusiveness versus exclusiveness of the laws of other countries, it considers whether legal changes experienced elsewhere could be introduced into these Pacific Island countries and the possible challenges and consequences of such an action. Transgender people do not form a homogeneous group in either of the two countries under consideration or more broadly in the Pacific region (Besnier 1997, 1994). While Tonga and Samoa are distinct in many ways, the two countries share certain relevant characteristics.Both came under the influence of English law—Tonga as a protected state and Samoa as a colony. Both countries also share a legacy of introduced English common law and have written constitutions that enumerate various fundamental rights.In the 348 Farran nineteenth century,both countries fell under the influence of Christian missionary efforts,and Christianity subsequently became completely integrated into the daily lives of Tongans and Samoans. Indeed, the constitutions of both countries refer to God and to Christian principles, and the majority of the population in Tonga and Samoa continue to be practicing or baptized Christians.1 Both are Polynesian countries with close historical, ethnic, and linguistic links, and both have stratified social structures—although Tonga, with its monarchy, nobles, and commoners, may be said to be more hierarchical than Samoa. As in other parts of the Pacific, society in both countries is also characterized by familial and gendered inequalities,strong patriarchal structures, and adherence to value systems that are claimed to represent tradition and are central to the identity of the islanders. At the same time, many Samoans and Tongans have lived outside the islands since the 1960s, constituting a considerable proportion of the Pacific diaspora in New Zealand, Australia, the United States of America, and elsewhere. Diasporic Samoans and Tongans maintain links with those back in the islands in many different ways, so that island-based Samoans and Tongans do not lead isolated lives but are part of a wider global community . The ebb and flow of people, remittances, news, views, values, and attitudes contrasts sharply with the static nature of the laws that prevail and the very limited legal reform that has taken place since independence. Like many other Pacific Island countries, Samoa and Tonga are therefore characterized by both tradition and change, conservatism and a desire for reform, and communalism and individualism—opposites that attract shifting support and give rise to real or perceived tensions depending on the context and agenda, and that may also prompt calls for legal reform. In a number of legal systems in the Pacific Island region and elsewhere, the legal status of transgender and other non-heteronormative people has been one area where legal change has occurred in recent years (see George, this volume, on Fiji). It may be thought that similar reforms could be possible in Tonga and Samoa because of the strong colonial and postcolonial links with legal systems from elsewhere—for example, the courts, the role of judges and lawyers, and the laws that apply. Even though Samoa and Tonga are sovereign states, postindependence laws passed by national parliaments tend to reflect dominant colonial or postcolonial legal cultures. Consequently, many of the laws that apply are influenced by introduced value systems and are not necessarily rooted in the customary aspects of contemporary Samoan or Tongan cultures. These dynamics operate in a [52.14.8.34] Project MUSE (2024-04-23 11...

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