Transsexuals, Fa’afafine, Fakaleiti and Marriage Law in the Pacific: Considerations for the Future

The legal challenges posed by individuals who do not easily fit into accepted legal categories but who, nonetheless, may be recognised as a social category or distinct group of people by the society in which they live is the issue that informs this article. More specifically, I am concerned with people who do not readily fit into the usual binary divide of male or female with reference to the law of marriage, and the ways in which the law has developed to respond to this challenge. In this discussion, two broad categories of people usually referred to as transsexual and transgendered must be distinguished. Transsexuality is recognised primarily, but not exclusively, in more developed countries and has been the subject of a number of case decisions in common law countries, including Australia and New Zealand. Transgender is recognised in the Pacific region. Here I focus on the Polynesian transgendered categories of fa’afafine (‘effeminate man or youth’, see Milner 1976) in Samoa and of fakaleiti (lit. ‘like a lady’) in Tonga, neither of which have been given much legal attention, despite having been paid considerable anthropological and sociological attention. The article looks at some of the jurisprudence that has emerged in relation to transsexuals and considers whether, and to what extent, it could be applied to fa’afafine and fakaleiti and with what consequences. Thus, the specific topics I address are three: (i) the legal perception of transsexual and transgendered persons, (ii) the legal developments beyond and within the Australasian region relating to transsexuals and marriage, and (iii) the extent to which the law may be relevant to Pacific Island states in the region now and in the future, especially with respect to fa‘afafine and fakaleiti.