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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 beenĀ legalĀ 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.Ā 

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 Potgieterā€™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 andĀ dismissedĀ 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.Ā Ā 

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 ā€” 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 oneā€™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: ā€œHomosexual relationships are, without doubt, globally recognized, and increasingly more countries have changed their laws to recognize oneā€™s right not to be discriminated against based on oneā€™s sexual orientation. It is time to recognize that homosexuality is part and parcel of the fabric of our society and that persons ā€” human beings ā€” in homosexual relationships are worthy of being afforded the same rights as other citizens.ā€  

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 Namibiaā€™s LGBTIQ+ community and advocacy.Ā Ā 

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 ā€˜further echoed and implemented in various articles of Chapter 3, and others of the Constitution.ā€™ 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.Ā However, the country does criminalize consensual same sex-sexual activities between people of the same gender in terms of its Roman-Dutch common law.Ā 

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’ RightsĀ foundĀ 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 Namibiaā€™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.Ā 

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. Namibiaā€™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 oneā€™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 wereĀ appliedĀ 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.Ā 

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 personā€™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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Rosenstein: Vote for Angela Alsobrooks and April McClain-Delaney

Two strong, accomplished women for Maryland

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I am endorsing two strong accomplished women for Maryland. The first is Angela Alsobrooks, for United States Senate. Second is April McClain-Delaney for Congress in Marylandā€™s 6th District. Both women are superbly qualified, and will fight hard for, and be a credit to, the people of Maryland.

Angela Alsobrooks is county executive of Prince Georgeā€™s County. She was born and raised in Maryland. She is a graduate of Duke University, and the University of Maryland, School of Law. She was the first full-time Assistant Stateā€™s Attorney to handle domestic violence cases in Prince Georgeā€™s County. She made history as the youngest, and first woman, to be elected Prince Georgeā€™s County Stateā€™s Attorney where she stood up for families, taking on some of Marylandā€™s worst criminals, while treating victims and the accused with dignity and respect. Under her tenure, violent crime dropped by 50 percent.  

Alsobrooks has said, ā€œThis year we know the rights of women to control their own bodies and healthcare, is at the top of the list of concerns for so many Marylanders, and decent people across the country, both men and women.ā€ Because of this Maryland must elect a strong woman to ensure we win the fight on this issue. There are many reasons to support Alsobrooks. One is if we look at the United States Senate, what is clearly missing, is an African-American woman. That is a disgrace. Marylanders have the ability to make that right by voting for Angela Alsobrooks. 

But there are other reasons to vote for Angela. She understands how federal policy impacts states and counties, directly impacting her constituents, because she has dealt with the issues that arise from the bills Congress passes. Angela is a pragmatic progressive, and will work across the aisle to get things done. Nothing prepares you more for negotiating with Republicans in Congress, than negotiating with a county council and community activists, and she has done both successfully for many years. She will continue to fight for LGBTQ equality having named the first LGBTQ liaison in PG County. She supports legislation to fight climate change, and supports student loan forgiveness. Maryland leaders know Alsobrooks is the right candidate. She has been endorsed by Gov. Wes Moore, Lt. Gov. Aruna Miller, Sen. Chris Van Hollen and former Sen. Barbara Mikulski, Congressmen Jaimie Raskin, Steny Hoyer and Glenn Ivey; and an overwhelming number of local legislators and leaders in PG County. They all know how good she is, and how much she will do for Maryland, and the nation. I urge a vote for Angela Alsobrooks in the Democratic Senate primary.

I also join a hero of mine, former Speaker Nancy Pelosi, Congressmen Steny Hoyer and Dutch Ruppersberger, along with a host of Maryland legislators and office holders, who have endorsed April McClain-Delaney. She has more than 30 yearsā€™ experience in communications law, regulatory affairs, and advocacy, across a broad spectrum of government, private sector, and non-profit engagements. She has served as the Washington director and a board member of Common-Sense Media, a leading non-profit dedicated to how media impacts kids health and wellbeing. Her policy and advocacy efforts have spanned digital citizenship, bridging the digital divide, and tech equity issues, privacy matters, spectrum, and internet governance. She has served as assistant general counsel and regulatory affairs director at Orion Satellite where she oversaw domestic and international regulatory efforts in approximately 20 countries, and served as one the founding board members of the International Satellite Association.

In addition to her professional endeavors, she has served on numerous boards and councils. These include the Meridian Womenā€™s Leadership Council; Georgetown Institute for Women, Peace and Security; Georgetown Law Center (past chair); Northwestern University Board of Trustees; the International Center for Research on Women; Innocents at Risk; and the Sun Valley Community School. She is a graduate of Northwestern University and has her JD from Georgetown Law Center.  Delaney is the best candidate to win the 6th District for Democrats. Delaney understands rural Maryland having grown up on a farm in Iowa. She understands government today, serving as the Deputy Assistant Secretary for Communications and Information, U.S. Department of Commerce, in the Biden administration. 

When it comes to the issue of protecting a womanā€™s right to control her own body and healthcare, no one will match April in her vigilance. She is a mother fighting for the rights for her four daughters. She is a strong supporter of LGBTQ rights, and will support policies to fight climate change, support debt relief for students, and will work to protect our national security. She understands what it means to work across the aisle without giving up any of her principles. She is the kind of person we need in Congress. I urge a vote for April McClain-Delaney in Marylandā€™s 6th Congressional District, Democratic primary.Ā 

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

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Unique financial planning challenges for trans community

Overcoming roadblocks in journey to living an authentic life

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Approximately 2.6 million Americans identify as transgender, according to the U.S. Census Bureau Household Pulse Survey in 2023. This community faces many financial, legal, and estate planning challenges, resulting in higher rates of financial instability compared to the general population. However, these challenges are not generally understood or even discussed. 

At JPMorgan Chase, weā€™re dedicated to providing awareness and education to help all communities ā€” including members of the LGBTQ+ community ā€” reach their financial goals. Our team at J.P. Morgan Wealth Management recently published a new white paper to offer actionable tips for transgender adults to help them overcome some of the specific obstacles they face with planning.

Here are some key takeaways:

Inaccurate identity documents create a foundational problem

Hundreds of thousands of transgender people in the U.S. do not have a single piece of identification that correctly identifies their gender or chosen name. Many people, including those in the broader LGBTQ+ population, have never thought about what their lives would be like if they lacked accurate identity documents. 

Having accurate identity documents is essential for so many aspects of everyday life ā€“ applying for school or a job, finding a place to live, exercising the right to vote and boarding a plane. Presenting inaccurate identification in these situations can subject transgender individuals to unfair discrimination and harassment. But correcting name and gender markers on identity documents can be complicated, expensive, time-consuming, and in some cases, impossible.

The U.S. State Department has adopted one of the most simple and progressive policies for correcting gender markers in the world. Since June 2021, medical certification is not required to change the gender marker in oneā€™s passport. Transgender people should consider updating their U.S. Passport book or card immediately and use that document as primary identification. Passport books and cards are valid for 10 years, even if policies change during that time.

Credit issues are common for trans community 

Transgender individuals who are able to successfully obtain new identity documents still frequently face credit issues. Unlike changes to oneā€™s last name after a marriage or divorce, informing banks or other creditors of a change to oneā€™s first name on accounts does not automatically cause credit reporting agencies to update that personā€™s credit file. The credit reporting system can often be problematic for transgender people after a name change, with many reporting that credit files are never updated or that their credit scores decline.

This can create a cascading effect in numerous areas of oneā€™s financial life, and it goes beyond borrowing. Credit files are frequently checked in employment decisions, pricing insurance, establishing utility and phone service and applying to rent a home. 

Until policies change, transgender individuals should directly contact each creditor and credit reporting agency and follow each organizationā€™s specific procedures and documentation requests. And they should carefully monitor that the changes are actually made and do not result in a credit score change.

Emergency and end-of-life documents should be carefully reviewed

Transgender people often have special health care needs and face unique forms of disparate treatment in accessing care, and cannot speak for themselves in these circumstances. End-of-life planning is often difficult to think about, but itā€™s especially critical that this community works with their attorneys and trusted advisors to create customized emergency and end-of-life legal documents. 

The people named in these documents who could become decision-makers ā€“ typically trusted friends or supportive family members ā€“ should be empowered to direct health care providers to meet the patientā€™s wishes and preserve their chosen name and gender identity, as well as service providers, such as funeral home employees, to honor the deceasedā€™s wishes about their appearance during memorial services.

The laws for these documents are complicated, and they vary depending on the state or territory. If possible, these documents should be prepared by experienced attorneys who routinely work with members of the LGBTQ+ community. 

The bottom line

Transgender individuals in the United States face unique financial, legal and estate planning challenges that create roadblocks in their journey to living an authentic life. Careful planning can help mitigate some, but not all, of these obstacles.

JPMorgan Chase & Co., its affiliates, and employees do not provide tax, legal or accounting advice. You should consult your own tax, legal and accounting advisors before engaging in any financial transaction. J.P. Morgan Wealth Management is a business of JPMorgan Chase & Co., which offers investment products and services through J.P. Morgan Securities LLC (JPMS), a registered broker-dealer and investment adviser, member FINRA and SIPC.

Joseph Hahn is executive director of Wealth Planning & Advice at J.P. Morgan Wealth Management.

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University students have a right to protest

But they must not threaten Jewish students on campus

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Students at Columbia University have set up a tent city to protest the war in Israel. (Screen capture via CBS News New York YouTube)

I support the right of students at Columbia University, and other colleges, to protest. They must understand they are protesting on private space. What I also find interesting is how many of them see their right to protest, and right to free speech. 

The First Amendment gives us a right to free speech, but it doesnā€™t specify what exactly is meant by freedom of speech. Defining what types of speech should and shouldnā€™t be protected by law, has been left to the courts. Clearly free speech has its limits. Obscene material such as child pornography, plagiarism of copyrighted material, defamation, or threats, arenā€™t allowed. Also not protected under the First Amendment is speech inciting illegal actions, or soliciting others to commit crimes. Private employers, and universities, are allowed to set their own guidelines as to what speech is allowed for their employees, and on their campuses. 

The debate over student protests at Columbia University is not a new one. I remember when the Student Afro Society (SAS) and the basically all-white Students for a Democratic Society (SDS), demonstrated and took over buildings at Columbia in 1968. Some were protesting the Vietnam War, others what they deemed would be a segregated gym in Morningside Heights, and Columbiaā€™s infringement on a minority community. Both legitimate causes. Those demonstrations took a nasty turn when students took over buildings and cut off water and electricity to them. They held a sit-in, in the presidentā€™s office, and took a dean hostage. Police were called and in some cases it got violent. We are not at the 1968 stage yet in the current demonstrations, and if outside agitators donā€™t get involved, it may not get to that. 

I agree with some of what the demonstrators are calling for, including having Israel rethink how it is conducting this war, protection for the Palestinian people, and immediately providing them with food and medicine. I donā€™t agree with their call to support BDS, which is the disinvestment in Israel. BDS is a Palestinian non-violent movement begun in 2005. I also see hypocrisy in what some of the protesters are saying. While they claim Israel is committing genocide in Gaza, which many disagree with, the same people are calling for genocide against Israel by supporting Hamas. It is Hamasā€™s stated goal to wipe Israel off the face of the earth, ā€œfrom the river to the sea.ā€

Calling out Israel for its tactics, is not anti-Semitic. But attacking, and calling out Jewish students on campus, telling them to go back to Poland, which we have seen on video, and making them feel unsafe, is. Then there is the totally outrageous statement, ā€œZionists donā€™t deserve to live.ā€ made by Khymani James, one of the student leaders of the Columbia, pro-Palestinian student protest encampment. He made the comments during and after a disciplinary hearing with Columbia administrators that he recorded and then posted on Instagram. I hope the president of Columbia University will be able to negotiate an agreement with the peaceful student demonstrators, including amnesty for some of those students who were arrested, if the students agree to certain parameters for continuing demonstrations. One being they cannot make other students feel unsafe on campus. 

I find it abhorrent that House Speaker Mike Johnson has inserted himself at Columbia University, calling for President Shafik to quit. It is a totally inappropriate political stunt. The same goes for Rep. Elise Stefanik (R-N.Y.) who called for the Biden administration to revoke the student visas of all foreign students who are demonstrating. Those students came to the United States for an education, because we are a free country. If they agree to the guidelines of the university, and what is recognized as acceptable free speech, we should continue to welcome them, and allow them to voice their feelings. Again, as long as they donā€™t threaten others while they do so. 

I am Jewish, and a strong supporter of the State of Israel. That support has not stopped me from calling on the Israeli people to rid themselves of Netanyahu, and his right-wing government. I oppose the settlements, and support a real two-state solution. But for that to happen not only will the Netanyahu government have to go, but the Palestinian people will have to reject Hamas. I have not heard the call for Hamas to release the hostages they took, whether those hostages are alive or dead at this time. 

I strongly believe in the right to protest, and for Americans, and those here legally, to speak out. In 1969, I came to D.C. to protest the Vietnam War in front of the Justice Department and was tear-gassed. I had a right to protest in a public space. Since that time, I have participated in many demonstrations. Some around the White House supporting rights for the disabled community, LGBTQ rights, womenā€™s rights, and in the ā€˜80s, demanding the government recognize, and do something about HIV/AIDS. The difference was in these demonstrations, those who disagreed were not threatened. The demonstrations I participated in, took place in public space, not the quad at Columbia University, or other university campuses, which is private space. Students who protest there must understand that. 

My hope is none of the peaceful student demonstrators at Columbia, and other institutions, those who do not threaten fellow students, are thrown out, losing the chance to earn a degree. Those students chose to go to their schools because they thought they would get a good education, and believed graduating from those schools would be good for their futures. 

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

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