LGBTQ rights in Tokelau

LGBTQ rights in Tokelau
Tokelau
Status	Male legal since 2003, female always legal [1]
Gender identity	No
Military	New Zealand's responsibility
Discrimination protections	No
Family rights
Recognition of relationships	No
Adoption	No

Lesbian, gay, bisexual, and transgender (LGBT) people in Tokelau face legal challenges not experienced by non-LGBTQ residents. Both the male and female kinds of same-sex sexual activity are legal in Tokelau, but same-sex couples and households headed by same-sex couples are not eligible for the same legal protections available to opposite-sex married couples. ^[1]

History

Tokelau, similarly to Samoa, the Cook Islands, New Zealand, Niue and other Polynesian states, possesses a traditional and cultural third gender population. Such individuals are known in Tokelauan as the fakafāfine. Fakafāfine are assigned male at birth but dress, act and behave as female. People living as this gender role have traditionally been accepted by Tokelauan society. ^{[2] [3] [4]}

Law regarding same-sex sexual activity

Same-sex sexual activity has been legal in Tokelau since 2003 by the Crimes, Procedure and Evidence Rules 2003. ^[1] Before that, male homosexual activity was illegal under sections 170 and 171 of Niue Act 1966 as extended to Tokelau by the Tokelau Islands Crimes Regulations 1975. ^{[5] [6]}

Recognition of same-sex relationships

Same-sex unions are not recognized (even though they are in New Zealand). Tokelau law does not explicitly prohibit same-sex marriage, but generally assumes the parties to be male and female. The Constitution of Tokelau states the following: ^[7]

• in English: The family is the basis of the nation, and the positive approach we use for the raising of our families shall be the basis for making national decisions.
• in Tokelauan: Ko te kāiga, ko te fatu ia o to matou atunuku, ma ko nā faiga gali e atiake ai o matou kāiga, e fakaaogā e kimatou kē fatu ai nā faigātonu a te atunuku.

Living conditions

Much like the rest of Polynesia, open displays of affection between partners regardless of sexual orientation may offend. ^[8]

Summary table

Same-sex sexual activity legal	(Since 2003)
Equal age of consent	(Since 2003)
Anti-discrimination laws in employment only
Anti-discrimination laws in the provision of goods and services
Anti-discrimination laws in all other areas (Incl. indirect discrimination, hate speech)
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	(New Zealand's responsibility)
Right to change legal gender
Access to IVF for lesbians
Commercial surrogacy for gay male couples
MSMs allowed to donate blood

See also

• LGBTQ portal

• Human rights in Tokelau
• LGBTQ rights in New Zealand
• LGBTQ rights in Oceania

References

1. "Crimes, Procedure and Evidence Rules 2003". PacLii. Retrieved 9 April 2021.
2. Macdonald, Baz (7 March 2018). "Fa'afafine, trans and bio queens – gender diversity in the NZ drag scene". Radio New Zealand. Retrieved 22 January 2020.
3. "Gender Identity – Some definitions". I'm Local. 13 December 2012. Archived from the original on 29 January 2019. Retrieved 22 January 2020.
4. "Tokelau Dictionary > F [pp. 51–132]". The Bookshelf. p. 68. Retrieved 22 January 2020.
5. "Tokelau Islands Crimes Regulations 1975". New Zealand Legislation. Retrieved 9 April 2021.
6. "TOKELAU A HISTORY OF GOVERNMENT" (PDF). 2008. p. 41. Retrieved 9 April 2021.
7. "Tulafono Fakavae a Tokelau". Pacific Islands Legal Information Institute (in Tokelau).
8. "LGBT Travellers in Tokelau". Lonely Planet. Retrieved 22 January 2020.