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Discriminating on the Grounds of Status: Criminal Law and Fa'afafine and Fakaleiti in the South Pacific (Working Paper) [2005] JSPL 6; (2005) 9(1) Journal of South Pacific Law

DISCRIMINATING ON THE GROUNDS OF STATUS: CRIMINAL LAW AND FA’AFAFINE AND FAKALEITI IN THE SOUTH PACIFIC

SUE FARRAN AND ALEXANDER SU’A*

INTRODUCTION

Scattered through the South Pacific region, particularly in Polynesian countries,^[1] are groups of people who, while of the male sex,^[2] might regard themselves and be regarded as, being of the feminine gender.  These are the fa’afafine of Samoa, the fakaleiti of Tonga, the pinapinaaine of  Tuvalu and Kiribati, the mahu or rae rae of Tahiti and Hawaii^[3] and the vakasalewalewa  of Fiji.^[4]

While there is quite a lot of anthropological and sociological material available about these people, there is considerably less legal comment.^[5]  This paper looks at the legal response to these groups, focusing particularly on the fa’afafine of Samoa with some comparative references to the fakaleiti of Tonga and the provisions of the criminal law in each country, and considers some of the legal and social ambiguities which emerge and the difficulties that these pose both for individuals identifying with these groups and for law makers and enforcers.

WHO ARE FA’AFAFINE AND FAKALEITI?

Literally, in Samoa, a fa’afafine is an ‘effeminate man or youth’,^[6] while the Tongan term fakaleiti means “like a lady” or “ladylike”. Members of these groups of men are not just cross-dressers – indeed they may choose not to cross-dress at all - but often males who have been reared as females and see themselves as females, or who, as they grow up choose to identify with females rather than males. This may happen where there is a shortage of girls to help a mother or where a boy expresses a wish to undertake traditional female tasks.  Whether men are born destined to be fa’afafine or fakaleiti or are nurtured to become so is not clear. Biologically such transgendered persons are men, but psychologically they may be women, perceiving themselves as women and carrying out women’s work in the home or the community. They have traditionally been valued for their ability to carry out tasks of both genders.  Today they are frequently engaged in work involving support and care in the community, hospitals and other organisations, such as youth and church groups,^[7] and, because of their skills and flair are often in demand as employees in the tourism and hotel industry. They have also developed their own niche in the modern entertainment industry, working in drag shows, fashion parades and cabarets, not only staged for tourists but also entertaining local audiences.^[8]

In some respects, transgendered men are less constrained by society than both men and women. In Tonga, for example, fakaleiti