LGBT rights in Tokelau

Lesbian, gay, bisexual, and transgender (LGBT) persons in Tokelau face legal challenges not experienced by non-LGBT residents. Both male and female 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]

LGBT rights in Tokelau
Tokelau
StatusMale legal since 2003, female always legal[1]
Gender identityNo
MilitaryNew Zealand's responsibility
Discrimination protectionsNo
Family rights
Recognition of relationshipsNo
AdoptionNo

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 Yes (Since 2003)
Equal age of consent Yes (Since 2003)
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 marriages No
Recognition of same-sex couples No
Stepchild adoption by same-sex couples No
Joint adoption by same-sex couples No
LGBT people allowed to serve openly in the military Yes (New Zealand's responsibility)
Right to change legal gender No
Access to IVF for lesbians No
Commercial surrogacy for gay male couples No
MSMs allowed to donate blood No

See also

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.
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