Outwith the Law in Samoa and Tonga

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. In this sense, transgender Pacific islanders are beyond 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 (plural form of fa‘afafine) 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 challenges and consequences of such an action.