LGBT rights in Samoa

LGBT rights in Samoa
Same-sex sexual intercourse legal status Illegal
Penalty:
 Up to 7 years imprisonment (not enforced)

Lesbian, gay, bisexual and transgender (LGBT) people in Samoa face legal challenges not faced by non-LGBT people. Same-sex sexual acts are illegal, punishable by up to 7 years imprisonment.

Samoan society tends to be very tolerant of transgenderism, but not of homosexuality. There is a long-standing tradition of raising some boys as girls to play an important domestic role in Samoan communal life. Such individuals are known as the fa'afafine.[1] Groups advocating for better representation of fa'afafine and the decriminalization of homosexuality include the Samoa Fa'afafine Association which sees anti-gay laws as hindering the full incorporation of both fa'afafine and gay and lesbian Samoans into society.[2]

Additionally, in 2011, Samoa signed the "joint statement on ending acts of violence and related human rights violations based on sexual orientation and gender identity" at the United Nations, condemning violence and discrimination against LGBT people.[3][4] By signing the joint statement, Samoa has made a commitment to the international community that it recognises the particular challenges faced by LGBTI people when examined through a human rights lens and it will endeavour to end violence, criminal sanctions and related human right violations based on sexual orientation and gender identity.[5]

History

Samoa, much like the rest of Polynesia, used to be very tolerant of same-sex relationships and transgender people before the arrival of Christianity.[6]

Legality of same-sex sexual activity

Sections 67, 68, and 71 of the Crimes Act 2013 criminalize same-sex sexual acts.[7] The Act took effect on 1 May 2013.[8]

Section 67. Sodomy - (1) A person who commits sodomy is liable:

(c) in any other case, to imprisonment for a term not exceeding five (5) years.

(2) Sodomy is complete upon penetration.

(3) It is no defence to a charge under this section that the other party consented.

Section 68. Attempts to commit sodomy - A person is liable to imprisonment for a term not exceeding five (5) years who:

(a) attempts to commit sodomy; or
(b) assaults any person with intent to commit sodomy.

Section 71. Keeping place of resort for homosexual acts - A person is liable to imprisonment for a term not exceeding seven (7) years who:

(a) keeps or manages, or knowingly acts or assists in the management of, any premises used as a place of resort for the commission of indecent acts between males; or
(b) being the tenant, lessee or occupier of any premises, knowingly permits the premises or any part thereof to be used as a place of resort for the commission of indecent acts between males; or
(c) being the lessor or landlord of any premises, or the agent of the lessor or landlord, lets the premises or any part of the premises with the knowledge that the premises are to be used as a place of resort for the commission of indecent acts between males, or that some part of the premises is to be so used, or is wilfully a party to the continued use of the premises or any part thereof as a place of resort for the commission of the indecent acts.

"Sodomy" was defined in the case of Police v Poi, [2007] WSSC 49, as meaning penetration of the male or female victim's anus by the offender's penis.[9]

In June 2010, the Samoa Law Reform Commission, in its report to the Prime Minister, recommended "repealing all criminal penalties attached to the criminal offence of sodomy and related acts conducted in private between consenting adult males." The Commission noted that legalization received support in the majority of public submissions.[10]

Sections 58D, 58E, 58G, and 58J of the Crimes Ordinance 1961 (now repealed) criminalized same-sex sexual acts.[11] In 2011, it was reported that Samoa would decriminalize same-sex sexual acts between consenting adults under a new Criminal Code recommended by Samoa's Law Reform Commission.[12][9] The Government, however, rejected the Commission's recommendation.[13]

Recognition of same-sex relationships

In August 2012, Prime Minister Tuilaepa Sailele Malielegaoi reportedly "scoffed" at the idea that Samoa would follow the lead of New Zealand in legalising same-sex marriage. When asked if he would support legalisation, he said, "You are dreaming."[14] He reiterated this position, on explicitly religious grounds, in March 2013.

My view as the leader of Samoa on this gay marriage issue is simple: There is no way, none whatsoever, that this issue will ever be considered in Samoa. The Samoan parliament would never consider a bill such as this, at least not in my time. It is the strong and combined view of the government of Samoa and the country's religious denominations. We stand united against this because Samoa is founded on Christian beliefs. And Christian beliefs are against this type of behavior which the Bible states, was the reason for the curse that brought destruction on Gomorrah and Sodom. It is very clear that the sacrament of marriage is between a man and a woman. Same-sex marriage is a sin. And no matter how people present this issue, no matter how they wrap it up, there is only one truth, and that is, this type of behavior is a sin.[15]

In October 2013, the Prime Minister personally criticised the marriage of a gay Samoan man in New Zealand.[16]

In November 2017, a Samoan associate minister accused the United Nations of secretly promoting same-sex marriage in Samoa.[17] Additionally, he affirmed that Samoa would "never" legalise same-sex marriage.

Discrimination protections

LGBT flag map of Samoa

Samoa has limited protections for sexual orientation. Section 20(2) of the Labour and Employment Relations Act 2013 prohibits direct and indirect discrimination on the basis of sexual orientation against an employee or applicant for employment in any employment policies, procedure or practices.[18]

Crimes motivated by sexual orientation and/or gender identity are criminalized under Section 7(1)(h) of the Sentencing Act 2016.[19]

Gender identity and expression

Samoa is fairly progressive in terms of gender identity and expression as it has a large transgender or "third gender" community called the fa'afafine. Fa'afafine are a recognized part of traditional Samoan customs, allowing for transgender people in particular trans women to be accepted as they have always been a part of Samoan culture. On 1 May 2013, Samoa repealed criminal provisions prohibiting males "impersonating" females. The Crimes Act 2013 removed provisions contained in the previous Crimes Ordinance 1961 which criminalised males "impersonating" females in a public place, and which was used to target transgender women and gender-diverse people.[20]

Fa'afafine and fa'afatama

Fa'afafine are people who identify themselves as a third gender in Samoa, American Samoa and the Samoan diaspora.[21] A recognized gender identity/gender role since at least the early 20th century in Samoan society, and some theorize an integral part of traditional Samoan culture, fa'afafine are assigned male at birth, and explicitly embody both gender traits, ranging from extravagantly feminine to conventionally masculine.[22] The Ombudsman's first National State of Human Rights Report, released in August 2015, referred to fa'afafine as "the third gender that has always existed in Samoa" and noted "their hard work and dedication to the family in carrying out both roles and responsibilities for men and women".[23] Fa'afatama, on the other hand, are people who were assigned female at birth, but embody both gender traits.[24]

The Society of Fa'afafine in American Samoa or "The Sosaiete o Fa'afafine in American Samoa" (S.O.F.I.A.S) is an organization designed to foster collaboration between the fa'afafine and the LGBT communities in both American Samoa, the Asia Pacific region and the world.[25] S.O.F.I.A.S describes itself as an organization dedicated to balancing both Samoan values with Western influences and aims to promote a positive attitude toward the Samoan fa'afafine community.

Conversion therapy

Conversion therapy has a negative effect on the lives of LGBT people, and can lead to low self-esteem, depression and suicide ideation.

The Mental Health Act 2007 states that people are not to be considered mentally ill if they refuse or fail to express a particular sexual orientation, and prohibits any conversion therapy by health professionals in the field of mental health.[26] The act was published on 2 February 2007.[27]

Criticism of Samoa's LGBT rights

The status of LGBT rights in Samoa have been examined by the Universal Periodic Review (UPR) Working Group through a mechanism of the United Nations (UN) Human Rights Council (HRC). Samoa is currently due for its third cycle review in May 2026.[28]

First UPR cycle recommendations

CountryLevel of ActionRecommendation[29]
Canada5, Specific actionFulfil its commitment to equality and non-discrimination by repealing all legal provisions that criminalize sexual activity between consenting adults and investigate all cases of discrimination based on sexual orientation and gender identity
France5, Specific actionRepeal laws criminalizing relations between consenting adults of the same sex
Norway5, Specific actionRepeal all provisions which may be applied to criminalize sexual activity between consenting adults and adopt appropriate legislative measures to include sexual orientation and gender identity in equality and non-discrimination laws
United States2, Continuing actionContinue its reconsideration of laws that restrict the human rights of individuals based on sexual orientation or gender identity, and repeal all such laws

In the first cycle of the Universal Periodic Review, Samoa rejected three level 5 recommendations by Canada, France and Norway to act immediately to repeal all legal provisions criminalizing sexual activity between consenting adults, and investigate discrimination based on sexual orientation and gender identity in order to fulfill its commitment to equality and non-discrimination.[30] However, rejections these recommendations, it did accept a recommendation by the United States to continue its reconsideration of decriminalizing same-sex sexual activity, with the UPR going on to state:

"Samoa noted the gaps and weaknesses in its legislative framework on upholding equality and non-discrimination based on sexual orientation, and that relevant legislation was being reviewed by the Samoa Law Reform Commission. Samoa indicated that Fa'afafine, gays and lesbians were integral members of Samoan society and were heirs to family chiefly titles and lands through extended family consensus, as done for all men and women of its society. However, sexual orientation was a sensitive issue in Samoa given the religious and cultural beliefs of mainstream society. Nonetheless, Samoa was confident that education, awareness and sensitisation would pave the way for societal acceptance and prevention of discrimination that might arise out of sexual orientation"[30]

Second UPR cycle recommendations

CountryLevel of ActionRecommendation[29]
New Zealand4, General actionTake steps to address inequalities affecting human rights in the area of discrimination based on sexual orientation and gender identity
Slovenia5, Specific actionRepeal all provisions criminalizing same-sex relations between consenting adults
Spain5, Specific actionComplete the updating of legislation by decriminalizing homosexual relations between consenting adults
United States5, Specific actionCombat discrimination based on sexual orientation and gender identity by decriminalizing "sodomy" and "indecency between males", which currently constitute crimes punishable by prison sentencing for up to seven years
Canada5, Specific actionRepeal laws that criminalize consensual same-sex conduct, and prohibit discrimination on the grounds of sexual orientation or gender identity in all areas of public life, including employment, health and education, bringing the legislation of Samoa into conformity with its commitment to equality
Chile4, General actionAdopt measures to prevent violence and discrimination against persons on the basis of their sexual orientation and gender identity
Slovenia4, General actionAdopt measures to reduce violence against women and girls and violence based on sexual orientation and gender identity

The recommendations of the second cycle report reflect increased concerns surrounding the lack of LGBT rights for Samoan individuals, as nearly twice as many countries put forward actions for Samoa to consider, with countries such as New Zealand commending Samoa on its progress in increasing participation by women in Parliament and government leadership positions but noting that further work was required in the area of lesbian, gay, bisexual and transgender rights.[31] In response, Samoa only accepted Slovenia's recommendation to reduce violence against females and individuals on the basis their sexual orientation and gender identity, taking note of the other proposals but ultimately rejecting them:

"The Constitution of Samoa declares the protection of fundamental rights and individual freedoms, regardless of gender. Decriminalizing sexual activity of sodomy and the repeal of all provisions criminalizing homosexual relations are not possible at this time because of cultural sensitivities and Christian beliefs of the Samoan society. The acceptance of this recommendation will go against the spirit of our Constitution which is founded on Christian principles. Consequently, Samoa notes these recommendations".[32]

National Human Rights Institution

The National Human Rights Institution (NHRI) of Samoa was officially launched on International Human Rights Day, 10 September 2013, after the Samoan Parliament passed the Ombudsman (Komesina O Sulufaiga) Act 2013.[33] The NHRI operates out of the Office of the Ombudsman and helps monitor, advise and report human rights issues, as well as raise awareness of individual rights and responsibilities amongst the population to promote good governance and prevent human right violations in Samoa.[34]

The establishment of the NHRI was met with worldwide approval as the Pacific Islands Forum Secretariat applauded the Government of Samoa for promoting public awareness of human rights and efforts to combat all forms of discrimination through proper reporting of alleged violations and better education.[35] The UN commended Samoa's achievement as a milestone not only for the county but for the region as a whole as the creation of a national human rights institute marks Samoa's accession to the rank of countries which regard the enjoyment of people's human rights and freedoms among their most essential priorities, launching a precedent that can be looked up to by all of Oceania.[36]

Samoa's first human rights overview "For Samoa by Samoa",[37] makes no mention or reference to sexual orientation and gender identity, including the fa'afafine population, even though there is a LGBT presence on the NHRI's Advisory Council.[38] Recently, there have been a number of NGO submissions concentrated on decriminalisation, LGBT youth issues and partnership rights for LGBT people in Samoa, with current advocates focused on increasing institutional and public comprehension of what non-discrimination based on sexual orientation and gender expression would look like.[23]

Summary table

Same-sex sexual activity legal (For males)/ (For females)
Equal age of consent (For males)/ (For females)
Anti-discrimination laws in employment only (Since 2013)
Anti-discrimination laws in the provision of goods and services
Anti-discrimination laws in all other areas (Incl. indirect discrimination, hate speech)
Hate crime laws include sexual orientation and gender identity (Since 2016)
Same-sex marriages
Recognition of same-sex couples
Stepchild adoption by same-sex couples
Joint adoption by same-sex couples
LGBT people allowed to serve openly in the military Has no military
Right to change legal gender (Samoa has a large transgender community called the fa'afafine and the fa'afatama; but unclear if legal gender changes are allowed)
Homosexuality declassified as an illness
Conversion therapy banned (Since 2007)
Access to IVF for lesbians
Commercial surrogacy for gay male couples
MSMs allowed to donate blood

See also

  • Hopgood, S. J. 2017. "Cooks bill puts spotlight on Pacific's anti-gay laws". Radio New Zealand, August 21, 2017.
  • Schmidt, J. 2001. Redefining Fa'afafine: Western Discourses and the Construction of Transgenderism in Samoa. Intersections, Issue 6.
  • Taulapapa McMullin, Dan 2013. "Coconut Milk". University of Arizona Press, 2013.
  • William Kremer (18 February 2014). "The evolutionary puzzle of homosexuality". BBC News. Retrieved 18 February 2014.

References

  1. ↑ Samoa Gay Guide Archived 2011-06-29 at the Wayback Machine.
  2. ↑ Miss Fa'afafine: Behind Samoa's 'third gender' beauty pageant
  3. ↑ "Over 80 Nations Support Statement at Human Rights Council on LGBT Rights » US Mission Geneva". Geneva.usmission.gov.
  4. ↑ United Nations High Commissioner for Human Rights, Discriminatory laws and practices and acts of violence against individuals based on their sexual orientation and gender identity, 19th sess, UN Doc A/HRC/19/41 (17 November 2011).
  5. ↑ United Nations Human Rights Council, (22 March 2011), Joint Statement on Ending Acts of Violence Related Human Rights Violations Based on Sexual Orientation and Gender Identity
  6. ↑ Polynesia's ancient same-sex acceptance
  7. ↑ Crimes Act 2013
  8. ↑ "Samoa gets new Crimes Act", Radio New Zealand International, 30 April 2013
  9. 1 2 CRIMES ORDINANCE 1961, Report 01/10, Samoa Law Reform Commission, June 2010 :pages: 22, 24, 27
  10. ↑ Report 01/10 (June 2010) at p. 24, Samoa Law Reform Commission, Crimes Ordinance 1961
  11. ↑ Crimes Ordinance 1961 Archived 2011-06-05 at the Wayback Machine.
  12. ↑ Wockner, Rex (14 June 2011). "Samoa may decriminalise same-sex relations between men". Pink Paper. Archived from the original on 12 July 2012.
  13. ↑ "Samoa Cabinet: Drop Libel Law, Allow Female Impersonation", Radio New Zealand International, 20 December 2011
  14. ↑ "Gay marriage in Samoa? You're dreaming, PM says", Samoa News, reported by Lanuola Tusani Tupufia and Aigaletaule’ale’a F. Tauafiafi, 5 August 2012 Archived 3 December 2013 at the Wayback Machine.
  15. ↑ "PM firm on rejection of same sex marriage", Sunday Samoan, reported by Lealaiauloto F. Tauafiafi, 31 March 2013
  16. ↑ Criminalisation of Homosexuality
  17. ↑ Associate Minister sounds same sex marriage alarm
  18. ↑ Sentencing Act 2016, Section 20(2)
  19. ↑ Sentencing Act 2016, Section 7(1)(h)
  20. ↑ Crimes Act 2013
  21. ↑ Frequently Asked Questions: Sexual orientation, gender identity and intersex status in the Pacific
  22. ↑ Bartlett, N. H.; Vasey, P. L. (2006). "A Retrospective Study of Childhood Gender-Atypical Behavior in Samoan Fa'afafine". Archives of Sexual Behavior. 35 (6): 659–66. doi:10.1007/s10508-006-9055-1. PMID 16909317.
  23. 1 2 "Submission to the UN Universal Periodic Review regarding the protection of the rights of LGBTI persons in Samoa" (PDF). Kaleidoscope Australia Human Rights Foundation in conjunction with Sexual Rights Initiative. 14 September 2015. Retrieved 10 September 2017.
  24. ↑ Fa’afatama gathering first of its kind in Samoa
  25. ↑ "Shevon Kaio Matai passes away". Samoa News. Archived from the original on 2015-05-30. Retrieved 2015-06-06.
  26. ↑ Mental Health Act 2007
  27. ↑ Mental Health Act 2007
  28. ↑ OHCHR, Basic facts about the UPR
  29. 1 2 UPR Info Database of UPR recommendations
  30. 1 2 A/HRC/18/14, 11 July 2011, at para. 75, Report of the Working Group on the Universal Periodic Review: Samoa
  31. ↑ A/HRC/33/6/, 27 June 2016, at para. 61, Report of the Working Group on the Universal Periodic Review: Samoa
  32. ↑ Addendum A/HRC/33/6/Add.1, 5 September 2016, at para. 20, Report of the Working Group on the Universal Periodic Review: Samoa
  33. ↑ Ombudsman (Komesina O Sulufaiga) Act 2013
  34. ↑ Establishment of the National Human Rights Institution (NHRI) at the Office of the Ombudsman,
  35. ↑ 14 December 2013, Samoa applauded for national human rights institution, Press Release: Pacific Islands Forum
  36. ↑ United Nations Development Programme, Institution,” 10 December 2013, establishment-of-a-national-human-rights-institution.html UN commends Samoa on the establishment of a National Human Rights
  37. ↑ OFFICE OF THE OMBUDSMAN & NATIONAL HUMAN RIGHTS INSTITUTION
  38. ↑ International Lesbian, Gay, Bisexual, Trans and Intersex Association: Carroll, A., (Geneva; ILGA, May 2016) p, 136, State Sponsored Homophobia 2016: A world survey of sexual orientation laws: criminalisation, protection and recognition
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