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The long exhale to recognizing same-sex unions in Namibia

May 16 ruling a landmark moment for LGBTIQ+ rights

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Litigants Sillers-Lilies, her wife, and Danny Digashu pictured outside the Namibian Supreme Court. (Photo courtesy of Bradley Fortuin/Southern Africa Litigation Center)

The Supreme Court of Namibia on May 16, 2023, issued a judgment recognizing same-sex unions of two non-nationals after they were denied immigration status by the Namibian government.

The story of Daniel Digashu, a South African national, and his family challenging the decision of the Namibian government denying him immigration status based on his same-sex marriage to his Namibian husband is just one of the many ways African governments continue to oppress and erase queer existence.

In 2015, Digashu married his partner Johann Potgieter in South Africa, where same-sex unions have been legal since Nov. 14, 2016; this, however, is not the case in Namibia. In 2017, after he and his family relocated to Namibia, Digashu applied for a work permit but got rejected by the Ministry of Home Affairs and Immigration based on his same-sex relationship status. The social inequality many LGBTIQ+ people face daily, and the lack of recognition and protection of LGBTIQ+ rights make them more vulnerable to stigma, discrimination and exclusion. Denying LGBTIQ+ people the right and the opportunity to marriage and family life has significant implications on their mental, emotional and overall well-being. 

Heterosexual marriage is widely and legally recognized in Namibia and is often seen as the fundamental foundational family institution in society, including the church. The mainstream practice of marriage is deeply rooted in traditional, cultural and religious beliefs and practices. Marriage is not only a union between individuals but also a union between families and even different communities.

The denial to recognize Digashu and Potgieter’s marriage had deprived them of a chance and a right to have a family, a community and a sense of belonging in society. The couple has been in and out of court since 2017, when they approached the High Court after several unsuccessful engagements with the ministry.

On March 20, 2021, the High Court heard the case and dismissed the matter on Jan. 20, 2022, citing that they cannot legally overrule a previous judgement by the Supreme Court, which found that same-sex relationships are not recognized under the Immigration Control Act of Namibia.  

Constitutional violation of human rights

The refusal of the recognition of same-sex unions is an infringement on several fundamental human rights recognized and protected under regional and international human rights instruments — including the Constitution of Namibia. Denying the recognition and protection of LGBTIQ+ marriage and family violates their rights to dignity, liberty, privacy and protection under the law. Such human rights violation is also discriminatory and violates the constitutional right to non-discrimination, equality before the law and freedom of expression based on one’s sexual orientation, gender identity and gender expression. Recognizing same-sex marriage ensures that LGBTIQ+ people have the same legal protections and rights.  

If it pleases the court 

In its 2022 judgment, the High Court of Namibia 2022 made favorable pronouncements noting the need to recognize same-sex relationships and that LGBTIQ+ people must be protected from discrimination. The court stated that: “Homosexual relationships are, without doubt, globally recognized, and increasingly more countries have changed their laws to recognize one’s right not to be discriminated against based on one’s sexual orientation. It is time to recognize that homosexuality is part and parcel of the fabric of our society and that persons — human beings — in homosexual relationships are worthy of being afforded the same rights as other citizens.”  

Both the High Court and the Supreme Court pronounced that the values, freedoms and democracy that Namibia was founded on have no place for discrimination and the violation of human rights. Everyone, including LGBTQI+ people, has the right to dignity, equality and protection under the law. This call for recognition by the courts is a significant victory for Namibia’s LGBTIQ+ community and advocacy.  

The Supreme Court went on to say that the “court has made it clear that this recognition of the equal worth of all human beings is at the very root of the Constitution and that this is ‘further echoed and implemented in various articles of Chapter 3, and others of the Constitution.’ The value attached to dignity is at the very heart of our constitutional framework and fundamental to it as a value of central significance. Although it is entrenched as a self-standing right in Art 8, it relates to the protection of other rights and in particular, the right to equality.”

Colonial remnants and state-sponsored LGBTIQ+-phobia 

To understand the continuous exclusion of LGBTIQ+ groups in progressive civic developments, it is essential to understand the impact and role that colonial laws have played in shaping the perception, attitudes and legal status of LGBTIQ+ people in society.

Colonial laws were discriminatory and repressive, resulting in the “othering” and, ultimately, the existence of vulnerable and marginalized groups. These laws were based on conservative religious and cultural values prevalent in Europe at the time and criminalized groups based on their gender, race, ethnicity and even sexual orientation and gender identity. Such laws continue to be in practice worldwide, including in Africa.

Like many other African nations, Namibia has an unfavorable history regarding recognizing and protecting LGBTIQ+ people. Identifying as lesbian, gay, bisexual or transgender is not illegal in Namibia. However, the country does criminalize consensual same sex-sexual activities between people of the same gender in terms of its Roman-Dutch common law. 

These provisions are part of what was inherited from colonial laws during colonization and into the new constitution. Such laws continue to sideline LGBTIQ+ people, as they face daily stigma, discrimination and violence, including inaccessibility to healthcare, education, employment, and housing.

In December 2020, the African Court on Human and Peoples’ Rights found that vagrancy laws or bylaws in nearly every country in Africa discriminate against marginalized and vulnerable populations, including women, children, people with disabilities, LGBTIQ+ people and others. Namibia is no exception in adopting such laws as the Roman-Dutch common laws criminalize consensual same-sex sexual relations. This imprint on the State still upholding oppressive colonial laws regarding LGBTIQ+ rights is part of why LGBTIQ+ people and families face daily exclusion. Consensual same-sex relations are still criminalized in Namibia. The repressive and colonial legislation still engraved in Namibia’s laws provides many challenges for same-sex couples and LGBTIQ+ families, like Digashu and Potgieter, and many other same-sex couples seeking legal recognition status in Namibia.

Regardless of their sexual orientation, gender identity and gender expression, everyone should have social, economic and legal stability and equal opportunities. Still, discrimination against LGBTIQ+ people is a significant barrier to full social and legislative inclusion. 

Same-sex relationships are currently criminalized in 32 African countries, with the death penalty in three African states if convicted and found guilty. 

Namibia, formerly known as South West Africa, was a former colony of Germany and later came under the authority of South Africa. Namibia gained independence on March 21, 1990 and celebrated its 33rd independence anniversary on March 21 this year. The constitution of Namibia came into being when the country gained independence. Namibia’s Vision 2030 concerns itself with the population concerning their social, economic and overall well-being and that all people enjoy high standards of living, good quality of life and economic and overall well-being and that all people enjoy high standards of living, good quality of life, and have access to quality social services. All of these aspirations translate into equity, equality and respect for human rights for all people, regardless of one’s social standing. By 2030, Namibia aspires to be a just, moral, tolerant and safe nation with legislative, economic and social structures in place to eliminate marginalization and ensure peace and equity between of all people of different ages, interests and abilities. 

The evolution of society 

Society is evolving and becoming increasingly aware of its rights and existence. In advocating and asserting their rights, communities realize that such common laws are outdated and contribute to the discrimination faced by vulnerable groups. Colonization fostered environments in which such rules were applied in policy and practice to deter, conceal and repress freedoms of expression, identity and association of groups that did not fit the colonial setting. Such groups were made to feel inferior and less valuable to society, leading to segregation practices such as apartheid, tribalism, classism and discrimination and exclusion of sexual and gender minorities.

In a modern-day democratic, independent state like Namibia, colonial remnants are still widely evident in specific laws and policies, so people like Daniel and Johan, and others, must seek justice from the courts to validate their relationship and belonging. There needs to be a correlation between the legislation and the vision that the country is working towards. 

The Bill of Rights is in place to protect and promote the fundamental human rights of Namibians and promote equality before the law and the need for fair, just and speedy court processes. The constitution promotes the rights to liberty, respect for human dignity, equality and freedom from discrimination regardless of a person’s sex, race, or social or economic status association, and even the right to marriage and having a family between same-sex spouses. The blatant denial of the recognition of same-sex marriages by the State violates the right to dignity. It amounts to multiple layers of discrimination by the State, which contrasts with the constitution of Namibia.  

Powering forward

Despite these challenges, there have been continuous efforts by LGBTIQ+ advocates and allies to push for greater recognition and acceptance of LGBTIQ+ individuals in Namibia. These efforts include taking an intersectional advocacy approach that is results-based. There is still a long way to go to achieve full equality and protection for LGBTIQ+ individuals in Namibia. In the long exhale process, Digashu has found public support and joined LGBTIQ+ human rights defenders to continue raising awareness and educating the public on human rights and the challenges faced by LGBTIQ+ people. The Digashu matter highlights the need for LGBTIQ+ inclusion and acknowledgement. In its judgment, the Supreme Court noted the need for social and legislative inclusion of LGBTIQ+ persons in Namibia. 

Bradley Fortuin is the LGBTIQ+ Program Officer at the Southern Africa Litigation Center and is social justice activist with over 10 years of experience in program design and strategic management, focusing on developing, implementing and strengthening LGBTIQ+-led movements.

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Trans rights have reached a crisis point

We should fear DeSantis more than Trump

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Michael Knowles speaks at CPAC. (Screen capture via Vimeo)

Trans rights have reached a crisis point. There’s no other way to say it. 

On March 4, CPAC speaker Michael Knowles plainly stated that “if [transgenderism] is false, then for the good of society, transgenderism must be eradicated from public life entirely – the whole preposterous ideology.”

To liken transness as a mere ideology is problematic on many different counts, but that paled in comparison to Knowles’s need for us to be eradicated. Eradication rhetoric is a genocidal tool, to ask and plead for an entire subpopulation to go away in one fell swoop is murderous and brutal. Genocides begin with this kind of rhetoric, then escalate to dangerous politicians being elected to office, then escalate even more to harsh policy, then escalate yet again when those harsh policies force humans to have to do many things — be locked in a cage, move out of the country, or even detransition, in this case. 

Look no further than what happened at the southern border during Trump’s years in office, when images of migrants and their children surfaced at maximum security facilities, lying on the floor with nothing but a meager blanket and barbed wire surrounding their bodies. 

Indeed, a lot of the CPAC conference was dedicated to engaging in these culture wars — but Knowles’s statement of eradication goes beyond the normal cultural bickering. This is why trans politics are at a dangerous turning point. 

Adding to this chaos are bathroom bills and sports policies that prevent trans high schoolers from accessing the bathroom they need, or playing on the right side of their sports team. 

In conversations with professionals, academics, and friends, I like to mention the fact that Republicans take peoples’ rights away when they notice that those people have gained more freedom. Think of it this way: when I was in high school, in 2010, far fewer trans people were out with their identities. Transness didn’t take a center stage in culture — be it on the left or on the right. And as a result, trans students were only attacked by bullies and in locker rooms, not by state politicians. 

But the rise of Gen Z has witnessed many high schoolers now flouting gender norms, going by nonbinary pronouns, and being proud of their gender variance. Moreover, society is filled with many more trans models and celebrities. When our presence becomes celebrated and known, Republicans will then take the necessary tools to push us back into the closet. 

What’s adding to the concern is the rise of smarter Republican candidates for the 2024 election who have exactly the same feelings of Trump but with higher intellects. Ron DeSantis is an example of a presidential contender who mirrors Trump’s bigotry and policies but is far more targeted and intelligent in his approach to public speaking and politics. Indeed, Democrats should be more afraid of DeSantis than of Trump. 

On an end note, I like to summon an old saying by the late Martin Luther King. “The arc of the moral universe is long but it bends toward justice.” No matter how much cruelty Republicans will put us through, they won’t succeed in the long run. More and more of society is catching up to the fact that trans people deserve respect and fairness. There will come a day when we have to sigh less and less about the state of our rights. 

Isaac Amend (he/him/his) is a trans man and young professional in the D.C. area. He was featured on National Geographic’s ‘Gender Revolution’ in 2017 as a student at Yale University. Amend is also on the board of the LGBT Democrats of Virginia. Find him on Instagram @isaacamend.

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The ‘Find Out’ generation: A new generation for a new America

We are willing to face down the forces of status quo

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(Photo by Ben Gingell/Bigstock)

In an op-ed I wrote in April entitled “On Gun Violence, the New Generation Will Not Be Silenced,” I wrote about Tennessee State Representative Justin Thomas and Justin Pearson being expelled from the Tennessee Legislature.

Since then, both have been reinstated by local county governing boards that sent them back to the legislature unanimously. Let’s recall they and the remaining legislator Gloria Johnson’s “crime,” was deciding enough was enough by protesting against gun violence on the legislative floor. The national support they have received since then has been enormous. 

Similarly, in Montana, Zooey Zephyr, the first transgender legislator there, was silenced by the Republican majority legislature there, being censured (prevented from public speaking) for saying there would be “blood on the hands” of members that voted on an anti-trans piece of legislation.

Zephyr and the “Tennessee Three,” as they’ve come to be called, are part of a new generation of leaders in America, or the “find out” generation that won’t settle for business as usual and are willing to face down the forces of status quo that want to maintain a system built on White supremacy and assimilation. 

They follow a lineage of resistance of those willing to cause “good trouble,” as the late Congressman John Lewis once said. As the former head of the Student Nonviolent Coordination Committee in the 60s, Lewis was arrested multiple times and was part of the Tennessee sit-ins at segregated lunch counters in Nashville. (He would later, in 2016, bring Congressional House proceedings to a halt in a protest against gun violence.)

Justin Jones himself has been arrested 13 times for non-violent protest and jokes that one of the reasons he ran for the state legislature is that “members of the Tennessee Legislature can’t be arrested,” which is true, at least while in session. But Justin’s arrests are part of the tradition of the civil rights movement in the South. Tennessee was indeed the home resistance. 

In May of 1960, over 150 students were arrested by the police for attempting to desegregate lunch counters in downtown Nashville. During the trial, the students, including Diane Nash, were defended by a group of 13 lawyers, headed by Z. Alexander Looby, a Black lawyer from the British West Indies, whose house was later bombed by segregationists. Looby and his wife were thankfully unharmed.

Later that day, 3,000 protesters marched to Nashville City Hall to confront Mayor Ben West to demand something be done about the violence. He agreed the lunch counters should be desegregated but that it should be up to the store managers.

The city later reached an agreement to desegregate numerous stores before the Civil Rights Act of 1964 prohibited desegregation altogether. The Rev. Dr. Martin Luther King Jr. later came to Nashville, saying he “did not come to bring inspiration, but to find it.” 

Meanwhile, in Montana, Zooey Zephyr, the first transgender state legislator in Montana, follows in the footsteps of early LGBT activists/officeholders like the late Harvey Milk of San Francisco. Zephyr’s courageous stance against a majority of the legislature who voted for an anti-trans bill prohibiting gender-affirming healthcare for minors resulted in Zephyr being censured and prohibited from giving speeches on the House floor. Since then, there has been a tremendous national backlash against such fascist tactics both there and in Tennessee. 

As we look ahead to Junteenth and Pride next month, Jones, Pearson, and Zephyr are visible symbols of the rise of a new generation coming up, the “find out” generation that refuses to accept the status quo and who is willing to put everything on the line to face injustice in the name of service to their communities.

Whether it is gun violence, housing, or hate, leadership like this will create the multigenerational, intersectional leadership we need at the local, state, and federal levels in the Halls of Congress to bring about solutions to the issues we have been facing. To create a new America that works for everyone. And I’m here for it. 

A millennial based in Los Angeles, Steve Dunwoody is a veteran, college educator, and community advocate.

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Pride month should be every month

Let’s not keep supportive CEOs and LGBTQ police out of our parades

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(Washington Blade photo by Michael Key)

I find it interesting we celebrate our Pride only one month a year. I take pride in being gay all year long. I am not opposed to celebrations in June; parades and festivals are great fun. I appreciate Capital Pride naming me a Pride Hero in 2016. Those magnetic signs decorating the convertible I rode in, now adorn my refrigerator. But for me Pride in being gay is something I have all year long.

It took me many years to feel that way. I was 34 when I finally came out, sharing who I was with others. One of the factors keeping me in the closet as a young person was the desire to run for public office. That wasn’t possible as an openly gay man, even where I grew up in New York City. It was only moving to Washington, D.C., away from family and childhood friends, that finally focused me on my true self, allowing me to come to grips with who I was, a gay man.

In 1978, D.C. was a place people could feel comfortable taking those first steps toward coming out. Many people were away from their family and old friends, ready to take a step into their own reality. You could go to a bar like Rascals in Dupont Circle, meet congresspersons, congressional staff, government officials, non-profit and business CEOs, teachers and reporters, all still in the closet and not afraid they would be outed. Back in the late ‘70s and early ‘80s, before AIDS, many of us were still in the closet.

Thankfully, there were some who were not. In the 1978 D.C. mayoral race, won by Marion Barry, the Gertrude Stein Democratic Club, the gay Democratic club in D.C., played a major role in his victory. Barry openly thanked them. He was a four-term mayor who supported the LGBTQ community. It wasn’t until the end of his career, when he was a Council member from Ward 8, that he came out against gay marriage. I remember how jarring it was for so many when he stood on Freedom Plaza with some homophobic ministers, and told us he opposed our right to marry. But he was the anomaly in D.C. The work of activists over the years, I was proud to be one of them, won. The D.C. Council passed marriage equality.

In today’s troubling times the rights of women, the LGBTQ community, the African-American community, and all minorities, are at risk. With white supremacy on the rise, and anti-Semitism once again rearing its ugly head, it’s important to celebrate our Pride all year long. I want every month to be a Pride month, so people in Florida will know they cannot deprive us of our rights, or erase us from their schools. So, a young boy or girl in Mississippi or Montana, who struggle with who they are, and who they love, will be able to see they are great and loved, and can live their life fully, and safely, being their true self.

I hope by the time we celebrate World Pride in D.C. in 2025, inviting the world in to see who the United States really is, we can be proud of who we are. Today that is not the case in many ways. I want a transgender person to come to the United States for World Pride and feel comfortable, not only on the streets of D.C., but anywhere in our country. I want us to be able to show off and say, here you are safe. I want the feeling I had, as a privileged white cisgender man, coming out safely in D.C., to be the feeling everyone has. To do that we will have to fight not only homophobia, but racism, and sexism. It is all interconnected and we must recognize that and join hands, if we are to be successful. While today in D.C. we have African-American Pride, Transgender Pride, Youth Pride, and Latino Pride, maybe we can all join together for World Pride. Let us have pride in each other, as well as ourselves. Let us have that pride every month, every day, and every hour, all year long.

We can do this and still have fun in June. Let’s not keep LGBTQ police, and military, out of our parades. Let us be as proud of them, as they are of themselves. Let us invite the corporate entities that support us. I would be proud to march with Disney CEO Robert Iger. We will only make progress if we do so together.

Peter Rosenstein is a longtime LGBTQ rights and Democratic Party activist. He writes regularly for the Blade.

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