Lesbian, gay, bisexual, and transgender (LGBT) people in Tokelau face legal challenges not experienced by non-LGBT 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]
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]
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]
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]
inEnglish: 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.
inTokelauan: 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.
(Since 2003)
