Criminal Law and Fa’afafine and Fakaleiti in the South Pacific

In recent decades legal systems throughout the Commonwealth have had to adapt to changing perceptions of gender and sexuality. Such change may take the form of modifications to family law, social security or welfare law, employment law or criminal law. In some systems reform may be liberal and widespread, elsewhere is may be more conservative and restricted. Issues concerning personal relations, sexual identity or gender orientation provoke debate from many angles. Despite the advocacy of the universality of human rights manifested in international human rights instruments and the signatories thereto, one solution does not fit all. This article looks at the particular circumstances of a small group of people in the South Pacific region and some of the issues raised in a rapidly changing world. Specifically the article looks at the legal response to these groups, focusing particularly on the fa’afafme of Samoa with some comparative references to the fakalehi 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.