| Location Header: | Tokelau |
| Legal Status: | Male legal since 2003, female always legal[1] |
| Gender Identity Expression: | No |
| Recognition Of Relationships: | No |
| Adoption: | No |
| Military: | New Zealand's responsibility |
| Discrimination Protections: | 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]
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 Tokelau: fakafāfine. Tokelau: 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]
Much like the rest of Polynesia, open displays of affection between partners regardless of sexual orientation may offend.[8]