The thesis attempts to address significant gaps in current knowledge on law reform, gender responsive law making and gender discriminatory practices in the legally pluralistic nations of the Pacific, more specifically, in Samoa, where the majority of fa’atama reside. This thesis adopts a critical talanoa approach to understanding the gender discriminatory practices embedded in Samoa customs (tu ma aga), traditions and law, from the perspective and lived experience of fa’atama, as they navigate their journeys, to enable the process of their recognition, through the proposed legislative and non-legislative reform of Samoa customs, traditions, and laws.

This is a thesis by manuscripts and is based on four research papers (Chapters 2-5) and one empirical research paper (Chapter 6). This thesis is presented as a successive progression of research in a series of seven chapters (Table 1). Each chapter, while related, function as standalone papers. A preface is provided at the start of each chapter, to demonstrate the sequential and cohesive progression of the research, most of which have been submitted to targeted journals and are papers under review. Chapters 1 (Introduction) and 2 (Literature Review) provide the justification for the research, positionality of the researcher, while the reviewed literature provides a critical lens to the laws, customs, traditions, and gender norms impacting the recognition of fa’atama in Samoa. The critical gaps of understanding from the reviewed literature, led to the framing of key research questions exploring the factors, tensions and challenges at the interface between laws, customs, and gender discriminatory practices which cross-cuts across all papers of the thesis. Chapter 3 explores the talanoa methodology adopted in the empirical chapter and three of the four research papers.

Paper 1 (Chapter 2), is a comprehensive review of relevant literature, from books, laws, court judgments to research papers, dated 1970-2020, resulting in the emergence of core themes, based on the critical gaps presented in the review: the language of sexuality and gender discourse in Samoa; the sociocultural construction of fa’atama in the context of femininity and masculinity in Samoa’s customary and legal context; the role of gender equity and gender status in Samoa law reform from historical origins to the modern day context; and lastly, an examination of gender discriminatory practices in the context of Samoa fa’atama and SOGIEC recognition in the criminal and family law context of Samoa. This review then proposes ways to reimagine some of the legislative and non-legislative challenges ahead for fa’atama and SOGIE members who do not fit into the cultural gender binary construct embedded in Samoa’s Gender Framework, or the recognized legal and sex categories of Samoa.

Building on Paper 1, talanoa methodology, law reform processes at customary and national level and the theory on the customary rule of recognition are explored in Papers 1-4 (Chapters 2-6). Finally, the purpose of the final chapter (Chapter 7) is to bring together all the findings and recommendations, research limitations, the implications for the wider fa’atama and SOGIEC communities. Any supplementary information not provided in each thesis chapter will be included in the Appendix.

The thesis used a critical talanoa methodological approach, underpinned by the vā (a Pasifika relational approach) reflected in the multiple, multi-dimensional diversity, dignity, and truths. The focus group talanoa and the face to face (semi structured) interview talanoa were the main methods of enquiry adopted for the study. Participants (respondents) in Auckland, New Zealand and Apia, Samoa were carefully selected by the principal fa’atama advisor engaged for the study.

The thematic analysis from the talanoa data found that both international fa’atama (i.e., fa’atama residing outside Samoa) and Samoa, are generally not accepted as fa’atama by family, church and the wider community (village); that fa’atama experience gender discrimination in their families, village and church community more in Samoa compared to fa’atama outside Samoa; that fa’atama are not free to express themselves in how they dress and who they choose to love; that fa’atama marriage and adoption of children is currently illegal in Samoa; that fa’atama are vastly under-represented in matai leadership and thus, are not actively involved in significant decisions impacting their families, churches, village community and more importantly, law reform. Consequently, this infringed upon their access to education, health, and law, impacting their legal status and more significantly, their recognition as a whole, which were far more urgent than is currently recognised by the community and government. This is fundamental to individual empowerment and dignity in Pacific contexts, in the absence of finance, employment opportunities, cultural status, and class power. The urgency for recognition as a way to combat gender discriminatory practices was indeed pressing for both fa’atama respondents in Samoa and New Zealand. Comparatively, fa’afafine, unlike fa’atama, were able to enjoy secure recognition in local laws, not based on need, but because customs and tradition favoured men for leadership roles as a whole.

The overarching aim of this research is to critically assess and understand the key challenges to proposed reform of the status quo, which is the lack of collective recognition and acceptance of fa’atama in village governance, local customs, and laws. While identifying the key risks in the context of how they might operate in practice, I examine the feasibility of such proposals being adopted, wholly or in part, by the current government. More importantly, proposals with an emphasis to review and reform the current village governance practices, structures, institutions, and laws of Samoa. In this way, it is intended that an original contribution to the study of customs and gender responsive law making can be made in Samoa and the wider Pacific region.