Commentary
Same-sex couples seek relationship recognition in Namibia
Supreme Court in May ruled country must recognize overseas marriages
BY BRADLEY FORTUIN AND THABO BUTHELEZI | On May 16, 2023, The Supreme Court of Namibia ruled that Namibia’s immigration laws must recognize same-sex marriages validly concluded outside Namibia, setting aside the High Court decision of Jan. 20, 2022. This case’s decision will significantly impact LGBTIQ+ rights and advocacy in Namibia and the region.
Background
In August 2017, Daniel Digashu, a South African Citizen and Johann Potgieter, a Namibian citizen, approached the High Court of Namibia after the Ministry of Home Affairs and Immigration denied Digashu, a South African citizen, a work permit based on their same-sex marital status.
Similarly, Namibian-born Anete Seiler and German-born Anita Seiler-Lilles approached the High Court of Namibia after Anita was denied permanent residence based on their marital status.
The High Court, comprised of three judges, dismissed their applications. The High Court held that the Constitution of Namibia prohibited discrimination based on sexual orientation; however, it could not grant the couples’ applications because of a 2001 judgement by the Supreme Court of Namibia in Immigration Selection Board v Frank, which refused to recognize the rights of same-sex partners under the Immigration Act. The High Court criticized the discrimination that was leveled at the applicants and the earlier judgement of the Supreme Court; however, it felt bound by the Supreme Court decision.
Supreme Court
The appellants argued that the facts in the Frank case differed in that their relationship was not recognized in terms of the law. The applicants in the Frank case were in a long-term committed relationship, whereas in the case of Digashu and Seiller-Lilles, the appellants’ relationships were valid regarding the law of the countries they were respectively concluded in.
The right to dignity
The Supreme Court of Namibia’s landmark decision to support the right to dignity for same-sex couples was a significant moment in the ongoing battle for equal rights. The Supreme Court held that denying the recognition of the Digashu and Seiller-Lilles’ respective marriages violated the right to human dignity. The court stated that the Constitution of Namibia guarantees the right to dignity to its people and does not exclude based on one’s sexual orientation, gender identity and expression. The court added that the fact that this is outlined in Article 8 of the constitution meant that it is constitutionally binding and relates to the protection of other rights.
The Supreme Court’s decision was based on the principle that all Namibians have the right to human dignity under the law. This was also rooted in the idea that marriage is a fundamental right essential to the pursuit of happiness. Although same-sex marriages cannot be legally performed in Namibia, the court held that denying the recognition of same-sex marriages concluded lawfully outside the country violated the applicant’s constitutional rights and was a form of discrimination that had no place in modern society. The Supreme Court’s decision was a watershed moment that signaled a new era of acceptance and equality for Namibia’s LGBTIQ+ community.
The right to equality:
The Supreme Court further affirmed the right to equality for LGBTIQ+ persons. It held that the ministry’s approach infringed on the right to equality. The court declared that “spouse,” in the context of the law, includes same-sex couples. The right to equality is a fundamental human right, ensuring everyone is treated equally under the law. It is a cornerstone of democracy and is essential for protecting human dignity. In Namibia, the right to equality is enshrined in the constitution. However, despite these legal protections, discrimination still exists in many forms and affects various marginalized and vulnerable groups, such as same-sex couples.
The Supreme Court has played a critical role in interpreting and enforcing the right to equality in the Digashu, Seillers-Lilles judgment. The court interpreted the law and applied it to the specifics of this case to ensure that applicants are treated equally, giving precedence for future equality matters. The Supreme Court’s reasoning for granting equality is based on several fundamental principles. Firstly, the court recognizes everyone is entitled to the same legal protections. No one should be discriminated against based on their race, gender, sexual orientation, gender identity or any other characteristic.
The court further recognizes that stigma and discrimination can take many forms and are influenced by one’s particular characteristics and identity. This is evident in cases when a law or policy appears neutral but disproportionately impacts a specific group, as can be seen in the Digashu, Seiller-Lilles matters where the ministry denied the applicants the right to equality based on their same-sex marriage status.
The court also recognizes that the right to equality is about protecting individual rights and promoting social cohesion. Stigma and discrimination can lead to social fragmentation and undermine the stability of society. By promoting equality, the court is helping to build a more cohesive, diverse, and stable community. This is also based on a deep understanding and interpretation of the principles of democracy and respect for human rights. The court proclaimed, “the recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family as indispensable for freedom, justice and peace.”
Public opinion
The court noted that the majority often influences public opinion, and elected officials express these views in Parliament. The court said it was the duty of the court to fulfill the constitutional rights of all people, including the minority groups such as LGBTIQ+ people. It is the duty of the courts to ensure, independently, that such groups are protected from stigma and discrimination and are afforded their constitutional rights. If the courts only relied on the majority’s opinions, there would be inconsistencies in who can and cannot be protected and recognized under the law.
Recognition of same-sex families
The State argued that in line with the doctrine of precedent, the term “family” does not include homosexual marriages and that in terms of the act and the constitution, marriage is a union between a man and a woman. They further argued that sexual orientation is not listed as grounds for prohibited discrimination and that equality before the law does not mean equality for each person’s relationships.
The Supreme Court stated, in its decision, however, that in addition to “spouse” not being defined as either a man or woman, neither is marriage. It held that any marriage that is legally concluded outside Namibia must be recognized in accordance with the law.
The Supreme Court noted that the facts in Frank were indeed different from the facts in the Appeals and that the statements made by the court in that case that “equality before the law for each person does not mean equality before the law for each person’s relationship,” were incompatible with the right to equality, and that it also fails to take into account the human worth and dignity of all human beings including those in same-sex relationships, which is at the core of the equality clause. It further held that the general principle of common law that if a marriage is concluded under the legal requirements for a valid marriage in a foreign country, it falls to be recognized in Namibia and that that principle applied in this matter. The court held that the ministry should have recognized the appellants’ respective marriages and that Mr. Digashu and Ms. Seiller-Lilles are to be regarded as spouses for purposes of the law.
The court went on to State that the ministry, by excluding a spouse in a same-sex marriage from inclusion within the term of “spouse,” infringed on their right to dignity and equality.
In a dissenting judgment by Justice Mainga JA, the judge states that the court had overstepped its bounds and had effectively redefined marriage. The judge further notes that the majority decision attacked traditional norms and values and threatened to undermine the institution of marriage itself. The dissenting judgement shows that there may be resistance to equal treatment of LGBTIQ+ persons. The silver lining is that four other justices recognized that the constitutional values of Namibia promote and protect the rights of queer persons.
Developments since the judgment
Following the passing of the judgment by the Supreme Court, there were emerging backlash from some members of the public and politicians. July 11, 2023, the National Assembly of Namibia passed a private member’s bill which aimed to redefine the term spouse and amends the Marriage Act. The bill was introduced with reference to Articles 81 and 45 of the Namibian Constitution to “contradict a decision of the Supreme Court of Namibia.” The proposed bill contradicts the Supreme Court’s Digashu, Seillers-Lilles’ decision. The bill was also discussed and approved by the National Council of Namibia and was sent to the President for assent but was sent back for further consultation.
The bill proposes that no marriage between persons of the same sex shall be recognized as a valid marriage in Namibia and that anyone in a same-sex marriage will not be regarded as spouse for purposes of any law in Namibia. The Marriage Act amendment states that marriage “means a legal union entered into between persons of opposite sex.”
Importance of this case
The judgment has taken a significant step forward by recognizing same-sex marriages conducted legally outside Namibia. This decision will significantly impact various aspects of the law and advocacy, including human rights, family law and equality. This decision is a milestone towards equality and human dignity. This decision positively impacts the future of the LGBTIQ+ community and society. It has the potential to promote acceptance and diversity and pave the way for a more inclusive and equal Namibian society. It further reflects the changing attitudes and values of the Namibian society towards LGBTIQ+ people. This decision is a significant step towards recognizing LGBTIQ rights in Africa, particularly considering the current regression and extreme anti-LGBTIQ sentiment being seen elsewhere.
The High Court and Supreme Court sentiments, respectively, show that there has been a change in approach around LGBTIQ+ rights within the judiciary since the 2001 judgement. In affirming that the terms spouse and family in terms of the act include persons in same-sex relationships, the court has moved from its previous jurisprudence to a jurisprudence that interpreted equality in a purposive right-giving manner.
It will also positively impact the mental health and well-being of LGBTIQ+ people, who have long faced stigma, discrimination and prejudice. The judgment is a blueprint for the role of the Courts in upholding fundamental human rights and promoting equality. The courts have played a crucial role in the fight for LGBTIQ+ rights and recognition, and this ruling will serve as a precedent for future equality cases and help shape the country’s laws, policies and practices towards equality and human rights.
Namibia still criminalizes consensual same-sex sexual activities between people of the same gender in terms of its Roman-Dutch common law, with the Criminal Procedure Act outlining procedures for punishment, although such prosecutions are rare.
Access more information on the case here.
Bradley Fortuin is the LGBTIQ+ Program Officer at the Southern Africa Litigation Center and a social justice activist.
Thabo Buthelezi is a researcher at the Southern Africa Litigation Center and a human rights activist.
Commentary
Protecting the trans community is not optional for elected allies and candidates
One of oldest political tactics is blaming vulnerable group for societal woes
Being an ally to the trans community is not a conditional position for me, nor should it be for any candidate. My allyship doesn’t hinge on polling, focus groups, or whether courage feels politically convenient. At a time when trans people, especially trans youth of color, are under coordinated attack, elected officials and candidates must do more than offer quiet support. We must take a public and solid stand.
History shows us how these moments begin. One of the oldest political tactics is to single out the most vulnerable and blame them for society’s anxieties — not because they are responsible, but because they are easier to blame than those with power and protection. In Nazi Germany, Jewish people were primarily targeted, but they were not the only demographic who suffered elimination. LGBTQ people, disabled people, Romani communities, political dissidents, and others were also rounded up, imprisoned, and killed. Among the earliest acts of fascistic repression was the destruction of Berlin’s Institute for Sexual Science, a pioneering center for gender-affirming care and LGBTQ research. These books and medical records were among the first to be confiscated and burned. It is not a coincidence that these same communities are now the first to suffer under this regime, they are our canaries in the coal mine signaling what’s to come.
Congress, emboldened by the rhetoric of the Donald Trump campaign, recently passed HR 3492 to criminalize healthcare workers who provide gender-affirming healthcare with fines and imprisonment. This bill, sponsored by celebrity politicians like Marjorie Taylor Greene, puts politics and headlines over people and health outcomes. Healthcare that a number of cis-gendered people also benefit from byway of hair regeneration and surgery, male and female breast augmentation, hormone replacement therapy etc. Even when these bills targeting this care do not pass, they do real damage. They create fear among patients, legal uncertainty for providers, and instability for clinics that serve the most marginalized people in our communities.
Here in D.C., organizations like Planned Parenthood and Whitman-Walker Health are lifelines for many communities. They provide gender-affirming care alongside primary care, mental health services, HIV treatment, and preventative medicine. When healthcare is politicized or criminalized, people don’t wait for court rulings — they delay care, ration medication, or disappear from the system entirely.
As a pharmacist, I know exactly what that means. These are life-saving medications. Continuity of care matters. Criminalizing and politicizing healthcare does not protect children or families — it puts lives at risk.
Instead of centering these realities, political discourse has been deliberately diverted toward a manufactured panic about trans women in sports. Let me be clear: trans women deserve to be protected and allowed to compete just like anyone else. Athletics have always included people with different bodies, strengths, and abilities. Girls and women will always encounter competitors who are stronger or faster — that is not a gender or sports crisis, it is the nature of competition.
Sports are meant to teach fairness, mutual respect, and the shared spirit of competition — not suspicion or exclusion. We should not police young people’s bodies, and we should reject attempts to single out trans youth as a political distraction. Families and doctors should be the authority on sex and gender identity.
This narrative has been cynically amplified by the right, but too often Democrats have allowed it to take hold rather than forcefully rejecting it. It is imperative to pay attention to what is happening — and to push back against every attempt to dehumanize anyone for political gain.
Trans people have always been part of our communities and our democracy. Protecting the most vulnerable is not radical — it is the foundation of a just society. My work is grounded in that commitment, and I will not waver from it. I’m proud to have hired trans political team Down Ballot to lead my campaign for DC Council At Large. We need more ally leaders of all stages to stand up for the LGBTQ+ community. We must let elected detractors know that when they come for them, then they come for all of us. We cannot allow Fox News and social media trolls to create a narrative that scares us away from protecting marginalized populations. We must stand up and do what’s right.
Anything less is not leadership.
Rep. Oye Owolewa is running for an at-large seat on the D.C. Council.
Commentary
America is going in the wrong direction for intersex children
Lawmakers are criminalizing care for trans youth, while permitting irreversible harm to intersex babies
I live with the consequences of what America is willing to condone in the name of “protecting children.”
When I was young, doctors and adults made irreversible decisions about my body without my informed consent. They weren’t responding to an emergency. They were responding to discomfort with innate physical differences and the social and medical pressure to make a child’s body conform to a rigid female-male binary. That’s the part people like to skip over when they talk about “child welfare”: the harm didn’t begin with my identity. It started with adults deciding my healthy body needed fixing.
That’s why the hypocrisy unfolding right now from statehouses to Capitol Hill feels so familiar, and so dangerous.
While harmful medical practices on intersex children, the nearly 2 percent born with differences in one or more of their physical sex characteristics, have been ongoing in the U.S. for decades, until recently, there was no law specifically condoning it.
This month, House Republicans passed one of the most extreme anti-trans bills in modern American history, advancing legislation that would criminalize gender-affirming medical care for transgender youth and threaten doctors with severe penalties for providing evidence-based treatment. The bill is framed as a measure to “protect children,” but in reality, it weaponizes the criminal legal system against families and providers who are trying to support young people in surviving adolescence.
At the same time, the administration has proposed hospital and insurance policies designed to choke off access to affirming care for trans youth nationwide by making providers fear loss of federal funding, regulatory retaliation, or prosecution. This is a familiar strategy: don’t just ban care outright; instead, make it so risky that hospitals stop providing it altogether. The result is the same everywhere. Young people lose access to care that major medical associations agree can be lifesaving.
All of this is happening under the banner of preventing “irreversible harm.”
But if America were genuinely concerned about irreversible harm to minors, the first thing lawmakers would address is the medically unnecessary, nonconsensual surgeries still performed on intersex infants and young children, procedures that permanently alter healthy tissue, often without urgent medical need, and long before a child can meaningfully participate in the decision. Human rights organizations have documented for years how these interventions are justified not by medical necessity, but by social pressure to make bodies appear more typically “female” or “male.”
Here is the uncomfortable truth: all of the state laws now banning gender-affirming care for transgender youth explicitly include exceptions that allow nonconsensual and harmful intersex surgeries to continue.
A recent JAMA Health Forum analysis found that 28 states have enacted bans on gender-affirming care for minors that carve out intersex exceptions, preserving doctors’ ability to perform irreversible “normalizing” procedures on intersex children even while prohibiting affirming care for trans adolescents.
This contradiction is not accidental. It reveals the real priority behind these laws.
If the goal were truly to protect children from irreversible medical interventions, intersex kids would be protected first. Instead, these policies target one group of children, transgender youth, while continuing to permit permanent interventions on another group whose bodies challenge the same rigid sex and gender binary that lawmakers are trying to enforce.
Intersex people are routinely erased from American policy debates, except when our bodies are invoked to justify harmful laws, warning that intersex children are being used as legal loopholes rather than protected as human beings. This “protect the children” rhetoric is routinely deployed to justify state control over bodies, while preserving medical practices that stripped intersex children like me of autonomy, good health, and choice. Those harms are not theoretical. They are lifelong.
What makes this moment even more jarring is that the federal government had finally begun to recognize intersex people and attempt to address the harms suffered.
In 2024, at the very end of his term, the Biden administration released the first-ever intersex health equity report — a landmark admission that intersex people have been harmed by the U.S. health care system. Issued by the Department of Health and Human Services, the report documents medically unnecessary interventions, lack of informed consent, and systemic erasure and recommends delaying irreversible procedures until individuals can meaningfully participate in decisions about their own bodies.
This should have been a turning point. Instead, America is moving in the opposite direction.
On day one, President Trump issued an executive order defining “sex” in a way attempting to delegitimize the existence of transgender Americans that also erased the existence of many intersex people.
When medicine is used to erase difference, it is called protection, while care that supports self-understanding is treated as a threat. This is not about medicine. It is about control.
You cannot claim to oppose irreversible harm to children while legally permitting surgeries that intersex adults and human rights experts have condemned for decades. You cannot claim to respect bodily autonomy while denying it selectively, based on whose bodies make lawmakers uncomfortable.
Protecting children means protecting all children, transgender, intersex, and cisgender alike. It means delaying irreversible interventions when they are not medically necessary. It means trusting and supporting young people and families over politicians chasing culture-war victories.
America can continue down the path of criminalizing care for some children while sanctioning harm to others, or it can finally listen to the people who have lived the consequences.
Intersex children deserve laws that protect their bodies, not politics that hurt and erase them.
Kimberly Zieselman is a human rights advocate and the author of “XOXY: A Memoir”. The author is a co-author of the JAMA Health Forum article cited, which examined state laws restricting gender-affirming care.
Today, on World AIDS Day, we honor the resilience, courage, and dignity of people living with HIV everywhere especially refugees, asylum seekers, and queer displaced communities across East Africa and the world.
For many, living with HIV is not just a health journey it is a journey of navigating stigma, borders, laws, discrimination, and survival.
Yet even in the face of displacement, uncertainty, and exclusion, queer people living with HIV continue to rise, thrive, advocate, and build community against all odds.
To every displaced person living with HIV:
• Your strength inspires us.
• Your story matters.
• You are worthy of safety, compassion, and the full right to health.
• You deserve a world where borders do not determine access to treatment, where identity does not determine dignity, and where your existence is celebrated not criminalized.
Let today be a reminder that:
• HIV is not a crime.
• Queer identity is not a crime.
• Seeking safety is not a crime.
• Stigma has no place in our communities.
• Access to treatment, care, and protection is a human right.
As we reflect, we must recommit ourselves to building systems that protect not punish displaced queer people living with HIV. We must amplify their voices, invest in inclusive healthcare, and fight the inequalities that fuel vulnerability.
Hope is stronger when we build it together.
Let’s continue to uplift, empower, and walk alongside those whose journeys are too often unheard.
Today we remember.
Today we stand together.
Today we renew hope.
Abraham Junior lives in the Gorom Refugee Settlement in South Sudan.
