LGBT rights in American Samoa

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LGBT rights in American Samoa
Adoption
No

Lesbian, gay, bisexual, transgender (LGBT) people in

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.

History

American Samoa, much like Samoa and the rest of Polynesia, used to be tolerant of same-sex relationships and transgender people before the arrival of European invaders who spread heterosexual law and norms as it is forbidden in Torah laws of morality in Christianity.[1][2]

Prejudices towards homosexuality did not exist 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.

Fa'afafine, a cultural third gender in Samoa, could traditionally marry either men or women, and even father children. This isn't so much the case in contemporary times, with reportedly very few fa'afafine opting to marry.[5]

Law regarding same-sex sexual activity

The first criminal law against sodomy was enacted in 1963. The law made male homosexual and heterosexual sodomy illegal, but did not address lesbian sex.

In 1979, the

mental illness. The law took effect in 1980.[6]
The age of consent is set at 16 years, regardless of gender and/or sexual orientation.

Recognition of same-sex relationships

Main article: Same-sex marriage in American Samoa

The American Samoa Code does not specify the sex of the parties to a marriage, but refers to the age of "the male" and "the female". It prescribes the use of a form in which the parties identify the parents to whom they are related as "son" and as "daughter".[7]

Representative Sua Carl Schuster introduced legislation to ban same-sex marriage in 2003. He said he hoped to establish the territory's position clearly in order to avoid lawsuits like those in the mainland United States. Many supporters of the bill cited their Christian faith as their reason for supporting his proposal. The House Judiciary Committee voted against it and then the full Senate did as well.[8]

It is uncertain how

Governor Lolo Matalasi Moliga stated he believed that the Supreme Court's same-sex marriage ruling does not apply to American Samoa. He said, "My personal opinion is, this ruling will not apply to our preamble, our constitution and our Christian values. Also, our political status is still unorganized and unincorporated, so the Supreme Court ruling does not apply to our territory." His stance was backed by the Assemblies of God, the Catholic Church, and the Church of Jesus Christ of Latter-day Saints.[12]
Senator Tuaolo Manaia Fruean believes that the ruling does apply.

Professor Rose Cuison Villazor at the

University of California, Hastings College of the Law, said that for same-sex marriage to be recognized in American Samoa, there needs to be a voluntary decision or litigation. Litigation would require "plaintiffs who have been denied the right to marry and are willing to take a public position on that and challenge their inability to marry. Plaintiffs could also be those who were married elsewhere and want the marriage recognized in American Samoa."[13][14]

Gay and Lesbian Advocates and Defenders (GLAAD), or the National Center for Lesbian Rights immediately for assistance.[15][16]

In January 2016, former Attorney General Fiti Alexander Sunia was appointed the new district court judge. His appointment was unanimously confirmed by the American Samoa Senate. During the confirmation hearing, he was asked about the Supreme Court ruling on same-sex marriage. He responded that he had not read the decision, and that the district court does not deal with this issue. He also said that he would not perform weddings for same-sex couples in his new assignment, unless the local marriage laws were first changed.[17] Currently, same-sex marriages are not licensed in American Samoa.

Under the Respect for Marriage Act passed by the 117th United States Congress and signed into law by President Joe Biden in 2022, all territories, including American Samoa, are required to recognize, though not perform, same-sex marriages performed legally in another jurisdiction. The law requires same-sex and opposite-sex couples to be treated equally.

Gender identity and expression

The High Court of American Samoa has held that birth certificates should only be altered to correct information that was erroneous at the time of recordation or to reflect a name change due to adoption. The Office of Vital Statistics has interpreted this ruling to cover applications from transgender individuals. The office will change the name on a birth certificate when presented with a name change order, and may change the gender marker on a birth certificate with medical documentation of the sex change.[18]

Living conditions

American Samoa, like the neighboring country of

fa'afafine. Well known fa'afafine include artist Dan Taulapapa McMullin, football player Jaiyah Saelua,[19] and beauty pageant Marion Malena
.

Nevertheless, American Samoan society is highly religious, and conservative attitudes regarding

sexuality tend to dominate. Open displays of affection between couples, same-sex or opposite-sex, may offend.[20]

Groups and organizations

The main LGBT organization in the territory is the Society of Fa'afafine in American Samoa (S.O.F.I.A.S.;

fa'afafine
community in American Samoa.

Pride festivals

The first Pride festival in American Samoa was held in August 2016 in Utulei. Organized by the Society of Fa'afafine in American Samoa, the event included a pageant, and song, dance and poetry choral competitions.[21]

Beauty pageants among the fa'afafine community are quite popular. Families generally turn up en masse to support their candidates for the title.[22]

Summary table

Same-sex sexual activity legal Yes (Since 1980)
Equal age of consent (16) Yes (Since 1980)
Anti-discrimination laws in employment only No
Anti-discrimination laws in the provision of goods and services No
Anti-discrimination laws in all other areas (Incl. indirect discrimination, hate speech) No
Same-sex marriage No[10]
Recognition of same-sex marriages performed elsewhere Yes (Since 2022)
Stepchild adoption by same-sex couples No
Joint adoption by same-sex couples No
Gays, lesbians and bisexuals allowed to serve openly in the military Yes (Since 2011)
Transgender people allowed to serve openly in the military Yes/No (Most Transgender personnel allowed to serve openly since 2021)[23]
Transvestites allowed to serve openly in the military No[24]
Intersex people allowed to serve openly in the military X/Yes (Current DoD policy bans "Hermaphrodites" from serving or enlisting in the military)[25]
Right to change legal gender Yes
Access to IVF for lesbians No
Commercial surrogacy for gay male couples No
MSM allowed to donate blood No/Yes (Since 2020; 3-month deferral period)[26]

See also

References

  1. ^ "Polynesia's ancient same-sex acceptance". LGBT Asylum News. September 12, 2010.
  2. ^ Kleiber, Eleanor. "Gender identity and Sexual Identity in the Pacific and Hawai'i: Introduction". University of Hawai'i at Mānoa Library.
  3. ^ Gauguin, Paul (September 1, 2010). "The men-women of the Pacific". Tate.org.
  4. ^ "Fa'afafine - Samoan boys brought up as girls". Charting the Pacific.
  5. ISBN 978-1317096528
    .
  6. ^ "Gay rights map: Notes on the data". BBC News. February 5, 2014. Retrieved November 3, 2014.
  7. ^ "American Samoa Code Annotated, Title 42, Chapter 01 - Marriage". American Samoa Bar Association. Archived from the original on March 22, 2019. Retrieved November 5, 2014.
  8. Radio New Zealand International
    . March 20, 2003. Retrieved November 4, 2014.
  9. ^ Gonzales-Pagan, Omar. "No Same-Sex Couple Left Behind: SCOTUS Ruling for the Freedom to Marry Would Apply with Equal Force to U.S. Territories". Lambda Legal. Retrieved July 1, 2015.
  10. ^ a b "American Samoa is lone US territory questioning gay marriage validity; no licenses sought". U.S. News & World Report. July 10, 2015. Archived from the original on July 11, 2015. Retrieved July 10, 2015.
  11. ^ "Same-sex marriage: American Samoa may be the only territory in the US where the historic Supreme Court ruling does not apply". The Independent. July 10, 2015. Retrieved July 10, 2015.
  12. ^ "Am. Samoa Governor: Same-Sex Marriage Against Values, Law". Pacific Islands Report. July 14, 2015. Archived from the original on April 13, 2019. Retrieved April 13, 2019.
  13. ^ "American Samoa questions gay marriage validity in territory". The Seattle Times. July 10, 2015.
  14. ^ "Is Same Sex Marriage Upheld by Supreme Court Another "Fundamental Right" Inapplicable in U.S. Territories?". Puerto Rico Report. August 25, 2015.
  15. ^ "Gay marriage in the United States, The Territory of American Samoa". Religious Tolerance.
  16. ^ "American Samoa". www.marriageequality.org.
  17. ^ "American Samoa judge objects to same sex marriage". Radio New Zealand. January 20, 2016.
  18. ^ "American Samoa". National Center for Transgender Equality.
  19. ^ "World's first transgender footballer proud to be 'home' for Pacific Games". samoa2019.ws. July 14, 2019.
  20. ^ Joe Okonkwo (July 2, 2009). "Gay-friendly American Samoa". Out Traveler.
  21. ^ "American Samoa Fa'afafine Group Hosts First Pride Festival". Pacific Islands Report. August 10, 2016. Archived from the original on June 3, 2021. Retrieved September 6, 2019.
  22. ^ "What's it Like in American Samoa?". AgeNation. October 6, 2012.
  23. ^ "Biden reverses Trump ban on transgender people in military". Associated Press. April 20, 2021.
  24. ^ "Medical Conditions That Can Keep You from Joining the Military". May 10, 2021.
  25. ^ "Medical Conditions That Can Keep You from Joining the Military". May 10, 2021.
  26. ^ McNamara, Audrey (April 2, 2020). "FDA eases blood donation requirements for gay men amid "urgent" shortage". CBS News.
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