LGBT rights in Samoa | |
---|---|
Status | Illegal for men, legal for women |
Penalty | Up to 7 years imprisonment (not enforced, legalization proposed) |
Gender identity | Not known |
Military | Has no military |
Discrimination protections | Some protections concerning sexual orientation in employment only |
Family rights | |
Recognition of relationships | No |
Adoption | No |
Lesbian, gay, bisexual, and transgender (LGBT) people in Samoa face legal challenges not faced by non-LGBT residents. Sexual contact between men is illegal; punishable by up to seven years imprisonment, but the law is not enforced.
Samoan society tends to be very tolerant of being transgender, but not of homosexuality. It has a large transgender or "third gender" community called fa'afafine . [1] 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. 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]
Prejudices towards homosexuality are not documented before the arrival of Christian missionaries in the late 18th and early 19th century. Samoan pre-colonial society, similar to other Polynesian societies, was a very "sexually free" culture. [6] Same-sex marriage ceremonies are known to have occurred. [7] Fa'afafine , a cultural third gender in Samoa, could traditionally marry either men or women, and even father children. This is not so much the case in contemporary times, with reportedly very few fa'afafine opting to marry. [8]
Sections 67, 68, and 71 of the Crimes Act 2013 (Samoan : Tulafono o Solitulafono 2013) criminalize same-sex sexual acts. [9] The Act took effect on 1 May 2013. [10] The law also prohibites heterosexual anal intercourse and oral sex.
Section 67. Sodomy
Section 68. Attempts to commit sodomy A person is liable to imprisonment for a term not exceeding five (5) years who:
Section 71. Keeping place of resort for homosexual acts
A person is liable to imprisonment for a term not exceeding seven (7) years who:
"Sodomy" was defined in the 2007 case of Police v Poi as meaning penetration of the male or female victim's anus by the offender's penis. [11]
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. [12]
Sections 58D, 58E, 58G, and 58J of the Crimes Ordinance 1961 (now repealed) criminalized same-sex sexual acts. [13] In 2011, it was reported that Samoa would decriminalize same-sex sexual acts between consenting adults under a new Criminal Code recommended by the Samoa Law Reform Commission. [14] [11] The Government, however, rejected the Commission's recommendation. [15]
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." [16] He reiterated this position, on explicitly religious grounds, in March 2013, saying: [17]
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.
In October 2013, the Prime Minister personally criticised the marriage of a gay Samoan man in New Zealand. [18]
In September 2017, Prime Minister Tuilaepa Sailele Malielegaoi ruled out the legalisation of abortion and same-sex marriage in Samoa as long as he and his Human Rights Protection Party remain in power, stating that they would not allow "heathenistic practices" in Samoa and that "it will never be accepted by government because it undermines our tradition and our culture." [19] [20]
In November 2017, a Samoan associate minister accused the United Nations of secretly promoting same-sex marriage in Samoa. [21] Additionally, he affirmed that Samoa would "never" legalise same-sex marriage.
In December 2017, Prime Minister Tuilaepa Sailele Malielegaoi described same-sex marriage as an "abomination" and a "Sodom and Gomorrah practice" and that "there is no true Christian country in the world which would allow it and it would not be allowed in Samoa as long as it remained a Christian country". [22] [23] The Samoa Fa'afafine Association opposed same-sex marriage in 2013, [24] and said in 2017 that it is not a priority as much as "the promotion of human rights and the reduction of discrimination and violence based on gender identity" is concerned. [25] In 2018, the association said that "marriage is the least of our worries when you don't have a job, it's not a priority." [26] [27]
Samoa has limited protections for sexual orientation. Section 20(2) of the Labour and Employment Relations Act 2013 (Samoan : Tulafono o Sootaga Va Lelei o Leipa ma Galuega 2013) [28] 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. [29] Article 20 of the law states as follows:
A person must not discriminate, directly or indirectly, against an employee or an applicant for employment in any employment policies, procedures or practices on one or more arbitrary grounds, including ethnicity, race, colour, sex, gender, religion, political opinion, national extraction, sexual orientation, social origin, marital status, pregnancy, family responsibilities, real or perceived HIV status or disability.
Crimes motivated by sexual orientation or gender identity are criminalized under Section 7(1)(h) of the Sentencing Act 2016 (Samoan : Tulafono o Faasalaga 2016). [29]
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. [30]
Fa'afafine are people who identify themselves as a third gender in Samoa, American Samoa and the Samoan diaspora. [31] 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. [32] 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". [33] Likewise, fa'afatama are people who were assigned female at birth, but embody both gender traits. [34]
The Samoa Fa'afafine Association (S.F.A.) is an organization designed to foster collaboration between the fa'afafine and the LGBT communities in Samoa, the Asia Pacific region and the world. [35] S.F.A 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 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 (Samoan : Tulafono o le Tulaga Maloloina o le Mafaufau 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. [36] The act was published on 2 February 2007. [37]
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 April and May 2021. [38]
Country | Level of Action | Recommendation [39] |
---|---|---|
Canada | 5, Specific action | Fulfil 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 |
France | 5, Specific action | Repeal laws criminalizing relations between consenting adults of the same sex |
Norway | 5, Specific action | Repeal 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 States | 2, Continuing action | Continue 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. [40] 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: [40]
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.
Country | Level of Action | Recommendation [39] |
---|---|---|
New Zealand | 4, General action | Take steps to address inequalities affecting human rights in the area of discrimination based on sexual orientation and gender identity |
Slovenia | 5, Specific action | Repeal all provisions criminalizing same-sex relations between consenting adults |
Spain | 5, Specific action | Complete the updating of legislation by decriminalizing homosexual relations between consenting adults |
United States | 5, Specific action | Combat 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 |
Canada | 5, Specific action | Repeal 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 |
Chile | 4, General action | Adopt measures to prevent violence and discrimination against persons on the basis of their sexual orientation and gender identity |
Slovenia | 4, General action | Adopt 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. [41] 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: [42]
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.
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. [43] 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. [44]
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. [45] 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. [46]
Samoa's first human rights overview, "For Samoa by Samoa", [47] makes no mention or reference to sexual orientation and gender identity, including the fa'afafine population, even though there is an LGBT presence on the NHRI's Advisory Council. [48] 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. [33]
In 2009, the Samoa's Censorship Board banned the screening of the movie Milk about the life of American gay rights activist Harvey Milk, yet in the same week it allowed the screening of the movie Lesbian Vampire Killers . In 2019, it banned the screening of the movie Rocketman about the life of British gay musician Elton John. [49] [50] [51] [52] The move was criticisised by human rights activists as "hypocritical", "ignorant" and" "selective morality", and was protested by the Samoa Fa'afafine Association. [53] [54] [55]
Same-sex sexual activity legal | (For males, legalization proposed)/ (For females) |
Equal age of consent | (For males, legalization proposed)/ (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) |
Conversion therapy banned | (Indirect ban since 2007, only medical professionals are barred from practicing attempted treatment) |
Access to IVF for lesbians | |
Commercial surrogacy for gay male couples | |
MSMs allowed to donate blood | |
Lesbian, gay, bisexual, and transgender (LGBT) rights in Fiji have evolved rapidly over the years, however, LGBT people may still face legal challenges not experienced by non-LGBT residents. In 1997, Fiji became the second country in the world after South Africa to explicitly protect against discrimination based on sexual orientation in its Constitution. In 2009, the Constitution was abolished. The new Constitution, promulgated in September 2013, bans discrimination based on sexual orientation and gender identity or expression. However, same-sex marriage remains banned in Fiji and reports of societal discrimination and bullying are not uncommon.
In the United States, public opinion and jurisprudence on lesbian, gay, bisexual, and transgender (LGBT) rights have developed significantly since the late 1980s. In 1961, beginning with Illinois, states began to decriminalize same-sex sexual activity, and in 2003, through Lawrence v. Texas, all remaining laws against same-sex sexual activity were invalidated. In 2004, beginning with Massachusetts, states began to offer same-sex marriage, and in 2015, through Obergefell v. Hodges, all states were required to offer it. In many states and municipalities, LGBT Americans are explicitly protected from discrimination in employment, housing, and access to public accommodations. Many LGBT rights in the United States have been established by the United States Supreme Court, which invalidated state laws banning protected class recognition based upon homosexuality, struck down sodomy laws nationwide, struck down Section 3 of the Defense of Marriage Act, made same-sex marriage legal nationwide, and prohibited employment discrimination against gay and transgender employees. LGBT-related anti-discrimination laws regarding housing and private and public services varies by state. Twenty-three states plus Washington, D.C., Guam, and Puerto Rico outlaw discrimination based on sexual orientation, and twenty-two states plus Washington, D.C., outlaw discrimination based on gender identity or expression. Family law also varies by state. Adoption of children by same-sex married couples is legal nationwide since Obergefell v. Hodges.
Lesbian, gay, bisexual, and transgender (LGBT) people in Namibia have limited legal protections. Sexual contact between men is criminalised within Namibia, although this law is generally unenforced. Discrimination based on sexual orientation is banned in Namibia but not for gender identity.
Oceania is, like other regions, quite diverse in its laws regarding homosexuality. This ranges from significant rights granted to the LGBT community in New Zealand, Australia, Guam, Hawaii, Easter Island, Northern Mariana Islands, Wallis and Futuna, New Caledonia, French Polynesia and Pitcairn Islands to remaining criminal penalties for homosexual activity in 6 countries and one territory. Although acceptance is growing across the Pacific, violence and social stigma remain issues for LGBTI communities. This also leads to problems with healthcare, including access to HIV treatment in countries such as Papua New Guinea and the Solomon Islands where homosexuality is criminalised.
Lesbian, gay, bisexual, and transgender (LGBT) persons in the U.S. state of Wyoming may face some legal challenges not experienced by non-LGBT residents. Same-sex sexual activity has been legal in Wyoming since 1977, and same-sex marriage was legalized in the state in October 2014. Wyoming statutes do not address discrimination on the basis of sexual orientation and gender identity; however, the U.S. Supreme Court's ruling in Bostock v. Clayton County established that employment discrimination against LGBT people is illegal under federal law. In addition, the cities of Jackson, Casper, and Laramie have enacted ordinances outlawing discrimination in housing and public accommodations that cover sexual orientation and gender identity.
Lesbian, gay, bisexual, and transgender (LGBT) persons in the U.S. state of Louisiana may face some legal challenges not experienced by non-LGBT residents. Same-sex sexual activity is legal in Louisiana as a result of the US Supreme Court decision in Lawrence v. Texas, although the state legislature has not repealed its sodomy laws. Same-sex marriage has been recognized in the state since June 2015 as a result of the Supreme Court's decision in Obergefell v. Hodges.
Lesbian, gay, bisexual, and transgender (LGBT) people in Niue face legal challenges not experienced by non-LGBT residents. Male same-sex sexual activity is illegal in Niue, although there is no recent instance of it being actively prosecuted. Same-sex couples and households headed by same-sex couples are not eligible for the same legal protections available to opposite-sex married couples.
Lesbian, gay, bisexual, transgender (LGBT) people in American Samoa face legal challenges not experienced by non-LGBT residents. Same-sex sexual activity became legal in the territory in 1980, but same-sex couples may not marry. Same-sex couples married legally in other jurisdictions are recognized and must be treated equally under US federal law since 13 December 2022. American Samoa remains the only part of the United States along with select Native American tribal jurisdictions to enforce a ban on same-sex couples marrying.
Lesbian, gay, bisexual and transgender (LGBT) people in the U.S. state of Delaware enjoy the same legal protections as non-LGBT people. Same-sex sexual activity has been legal in Delaware since January 1, 1973. On January 1, 2012, civil unions became available to same-sex couples, granting them the "rights, benefits, protections, and responsibilities" of married persons. Delaware legalized same-sex marriage on July 1, 2013.
Lesbian, gay, bisexual, and transgender (LGBT) people in the Cook Islands face some legal challenges not experienced by non-LGBT residents, but these challenges have gradually lessened in recent years. As of 1 June 2023, homosexual acts between men became legal in the Cook Islands after a vote by the Parliament of the Cook Islands. Female homosexual acts have never been illegal. Same-sex marriage is outlawed. Nevertheless, LGBT people do enjoy some limited legal protections, as employment discrimination on the basis of sexual orientation has been banned since 2013.
Lesbian, gay, bisexual, and transgender (LGBT) persons in the Marshall Islands may face legal challenges not experienced by non-LGBT residents. Same-sex sexual activity has been legal in the Marshall Islands since 2005, and discrimination on the basis of sexual orientation and gender identity has been outlawed in all areas since 2019. Despite this, households headed by same-sex couples are not eligible for the same legal protections available to opposite-sex married couples, as same-sex marriage and civil unions are not recognized.
The establishment of lesbian, gay, bisexual, and transgender (LGBT) rights in the U.S. state of Connecticut is a recent phenomenon, with most advances in LGBT rights taking place in the late 20th century and early 21st century. Connecticut was the second U.S. state to enact two major pieces of pro-LGBT legislation; the repeal of the sodomy law in 1971 and the legalization of same-sex marriage in 2008. State law bans unfair discrimination on the basis of sexual orientation and gender identity in employment, housing and public accommodations, and both conversion therapy and the gay panic defense are outlawed in the state.
Lesbian, gay, bisexual, and transgender (LGBT) people in the U.S. state of Hawaii enjoy the same rights as non-LGBT people. Same-sex sexual activity has been legal since 1973; Hawaii being one of the first six states to legalize it. In 1993, a ruling by the Hawaiʻi Supreme Court made Hawaii the first state to consider legalizing same-sex marriage. Following the approval of the Hawaii Marriage Equality Act in November 2013, same-sex couples have been allowed to marry on the islands. Additionally, Hawaii law prohibits discrimination on the basis of both sexual orientation and gender identity, and the use of conversion therapy on minors has been banned since July 2018. Gay and lesbian couples enjoy the same rights, benefits and treatment as opposite-sex couples, including the right to marry and adopt.
Lesbian, gay, bisexual, and transgender (LGBT) people in Tonga face legal challenges not experienced by non-LGBT residents. Male homosexuality is illegal in Tonga, with a maximum penalty of 10 years imprisonment, but the law is not enforced.
Lesbian, gay, bisexual, and transgender (LGBT) people in the U.S. state of Indiana enjoy most of the same rights as non-LGBT people. Same-sex marriage has been legal in Indiana since October 6, 2014, when the U.S. Supreme Court refused to consider an appeal in the case of Baskin v. Bogan.
Lesbian, gay, bisexual and transgender (LGBT) people in the U.S. state of Idaho face some legal challenges not experienced by non-LGBT people. Same-sex sexual activity is legal in Idaho, and same-sex marriage has been legal in the state since October 2014. State statutes do not address discrimination based on sexual orientation and gender identity; however, the U.S. Supreme Court's ruling in Bostock v. Clayton County established that employment discrimination against LGBT people is illegal under federal law. A number of cities and counties provide further protections, namely in housing and public accommodations. A 2019 Public Religion Research Institute opinion poll showed that 71% of Idahoans supported anti-discrimination legislation protecting LGBT people, and a 2016 survey by the same pollster found majority support for same-sex marriage.
Lesbian, gay, bisexual, and transgender (LGBT) persons in the U.S. state of Alaska may face some legal challenges not experienced by non-LGBT Alaskans. Since 1980, same-sex sexual conduct has been allowed, and same-sex couples can marry since October 2014. The state offers few legal protections against discrimination on the basis of sexual orientation and gender identity, leaving LGBT people vulnerable to discrimination in housing and public accommodations; however, the U.S. Supreme Court's ruling in Bostock v. Clayton County established that employment discrimination against LGBT people is illegal under federal law. In addition, four Alaskan cities, Anchorage, Juneau, Sitka and Ketchikan, representing about 46% of the state population, have passed discrimination protections for housing and public accommodations.
Lesbian, gay, bisexual, and transgender (LGBT) persons in the U.S. state of Oklahoma may face some legal challenges not experienced by non-LGBT residents. Same-sex sexual activity is legal in Oklahoma as a result of the U.S. Supreme Court decision in Lawrence v. Texas, although the state legislature has not repealed its sodomy laws. Both same-sex marriage and adoption by same-sex couples have been permitted since October 2014. State statutes do not prohibit discrimination based on sexual orientation or gender identity; however, the U.S. Supreme Court's ruling in Bostock v. Clayton County established that employment discrimination against LGBT people is illegal. This practice may still continue, as Oklahoma is an at-will employment state and it is still legal to fire an employee without requiring the employer to disclose any reason.
In the U.S. Virgin Islands, Lesbian, gay, bisexual, and transgender (LGBT) rights have evolved substantially in recent years. Same-sex sexual activity has been legal since 1985. The region also provides explicit legal protections against discrimination for LGBT residents since December 2022. Following the Supreme Court's ruling in Obergefell v. Hodges on June 26, 2015, which found the denial of marriage rights to same-sex couples unconstitutional, same-sex marriage became legal in the islands.
The following outline offers an overview and guide to LGBT topics.