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Is Israel ‘gay heaven?’ It’s complicated

American LGBT delegation visits Middle East

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Kevin Naff, Andy Sacher, Tamika Butler, John Campbell, Brad Sears, Paula Abdul, Jorge Valencia, Kirk Fordham, Malcolm Lazin, Project Interchange, Israel, Palestine, gay news, Washington Blade
Kevin Naff, Andy Sacher, Tamika Butler, John Campbell, Brad Sears, Paula Abdul, Jorge Valencia, Kirk Fordham, Malcolm Lazin, Project Interchange, Israel, Palestine, gay news, Washington Blade

Project Interchange participants ran into Paula Abdul in the Jerusalem market. From left-right: Kevin Naff, Andy Sacher, Tamika Butler, John Campbell, Brad Sears, Paula Abdul, Jorge Valencia, Kirk Fordham and Malcolm Lazin. (Photo courtesy Project Interchange)

When a delegation of nine LGBT leaders from the United States arrived last month in Israel for an intensive seminar, we knew the gay residents of progressive Tel Aviv enjoyed broad acceptance and myriad legal protections. But imagine our surprise when TV personality Gal Uchovsky announced that we had arrived in “gay heaven.”

Israel is “the best LGBT country in the world,” he told us, adding that the nation’s LGBT residents face no serious problems that he could identify. A gay child growing up in rural Israel is better off than a similar kid in the rural United States, he observed. Homelessness is rare here and Israeli parents embrace their gay kids because, well, better to be gay than dead.

Uchovsky is a proud cheerleader for his country, which is endearing, though his privileged worldview has perhaps shielded him from some unpleasant, inconvenient realities. Life for LGBT Israelis is, indeed, more complicated than Uchovsky’s rosy assessment and, thus, our trip’s catchphrase was cemented: “It’s complicated.”

The stellar seminar, sponsored by Project Interchange, a program of the American Jewish Committee, brought me well out of my comfort zone and right into Ramallah and to the edge of the Gaza Strip. The focus of the visit — LGBT issues — was often overshadowed by the frustrating stalemate of the Palestinian-Israeli conflict. Why can’t the two sides come to an agreement on a two-state solution? It’s complicated. And, as we learned, it’s far more complicated than American mainstream media seem to grasp.

And so from the West Bank to Jerusalem to Tel Aviv to the Negev, the nine of us trekked to learn all we could from a diverse range of perspectives, including from Palestinians and Israeli experts critical of the country’s record on LGBT rights. The other eight participants in the weeklong seminar were: Log Cabin Republicans Executive Director Gregory T. Angelo; Tamika Butler of Young Invincibles; gay Harrisburg (Pa.) Treasurer John Campbell; Gill Action Fund Executive Director Kirk Fordham; Equality Forum Executive Director Malcolm Lazin; Lavender Effect Executive Director Andy Sacher; Williams Institute Executive Director Brad Sears; and Point Foundation CEO Jorge Valencia.

We toured Tel Aviv’s bustling, posh community center, touted as the only such center in the world that is municipally owned. The government’s funding of such centers and related LGBT causes is a mixed bag. In the United States, small LGBT non-profits and HIV service providers jockey for limited public grants, often leading to turf wars. But most such U.S. groups aren’t beholden to the government or muzzled by fears of government retaliation. It’s not clear that the same is true in Israel. It’s a dilemma: accept public money to advance your important work and mute your criticisms of the government or reject public funds and risk financial shortfalls that will curb programming. As one speaker put it, “I’d rather our public money went to gay causes than to building another bomb.”

The highlight of that visit for me was hearing from Uzi Even, the first openly gay member of the Knesset and a pioneering elder statesman of the Israeli LGBT rights movement who has helped rid the military of discriminatory policies and liberalize adoption laws. In a true sign of the times, his latest cause involves sorting out Israel’s divorce laws as they relate to same-sex couples.

My advice to Israeli LGBT advocates: Take time now to celebrate and honor the contributions of Even and others like him. Record his personal history and share it with young people. It wasn’t so long ago in Israel when gay sex acts were illegal. Such lightning-speed progress doesn’t happen by accident and brave pioneers like Even deserve our gratitude.

As we made our way up the stairs to meet with Even in the community center, we could hear the giggles of young children and stepped over a pile of neatly arranged kids sneakers in a hallway. Another sign of the times.

Several speakers emphasized the role that a 2009 shooting played in advancing gay acceptance. On Aug. 1, 2009, a gunman burst into the LGBT community center in Tel Aviv and opened fire, killing two and injuring at least 15 others. It’s hard to quantify how significant a role that tragedy played in changing Israeli attitudes toward gays, but our speakers agreed it was a turning point.

It’s a stark contrast to what we see in the United States, where violent hate crimes continue to plague our community, from trans women routinely killed in our inner cities to the recent murder of a gay man in the heart of New York’s gay village. Americans are so inured to violence that these crimes barely register in the mainstream media, let alone lead to a widespread change in attitudes.

After a couple of days in progressive Tel Aviv, we made our way to Jerusalem. In addition to the usual religious sites, a group of us visited the Jerusalem Open House, an LGBT community center engaged in broad grassroots work in the face of complicated problems like funding, space constraints, religious critics who have sometimes turned violent and the ever-present challenge of building relations with Arab residents of the city.

Celebrating gay pride in Jerusalem has been complicated, too. They don’t agree on much, but anti-gay animus was something that united the world’s major religions as conservative Jewish and Arab leaders denounced plans for pride parades in the holy city in recent years. In 2005, marchers were attacked by an ultra-orthodox Jewish man who stabbed three participants. The following year, Jerusalem was selected to host WorldPride, which led to more unrest and violent protests. Some lawmakers in the Knesset attempted to ban gay pride parades in Jerusalem, but those efforts fizzled. Our hosts in Jerusalem insist that relations are improving and that Pride is safer than in the recent past. Here, another stark contrast to the way we celebrate in the United States, with our corporate-sponsored pride villages, beer gardens and all-night parties.

From Jerusalem, we took a daytrip and toured Efrat, a small city in the Gush Etzion settlement bloc with its mayor, Oded Ravivi. The issue of settlements commands a lot of attention in U.S. media coverage of Israel and so I was curious and excited to see one up close. Efrat has eschewed the barbed wire fences that snake through so much of the Israeli landscape and officials have worked to cultivate economic ties with surrounding Palestinian villages. But we learned that such efforts only go so far. When the mayor approached a Palestinian schoolmaster about sending teachers to Efrat to teach Arabic to Israeli kids, he declined, fearing he would be “slaughtered” for collaborating with the Jews.

It was a sobering reminder of how moderates on both sides of the divide are thwarted by the extremists in their midst. Is there a cautionary lesson here for Americans, as our own political rhetoric becomes increasingly dominated by the most extreme, shrill voices of the far left and right; our legislators afraid to compromise and be seen as collaborating with the opposition?

In one awkward moment, a member of our group asked Mayor Ravivi how he would react if one of his children came out to him as gay. He seemed startled by the question and suggested it couldn’t happen in his family. Cue the eye rolling among some of us. Such reactions are common among many who proclaim they don’t discriminate but haven’t devoted much thought to the underlying issues. Gay kids are good for conservative politicians — just ask Dick Cheney.

After absorbing the complicated problems and history of Jerusalem, some of us needed a release and our gracious hosts at Open House took us to the lone gay bar in Jerusalem, called Video, where we had a few drinks and danced till the wee hours alongside a diverse crowd of revelers. Music, indeed, makes the people come together.

 

Accusations of ‘pinkwashing’

 

The concept of “pinkwashing” emerged as a hot topic throughout the week. Some critics claim the country’s embrace of LGBT rights is merely a propaganda effort to claim the mantle of modernity and establish a stark contrast to homophobic regimes in the West Bank, Gaza and elsewhere in the Middle East. These critics claim the government’s support for gay rights doesn’t threaten or undermine the structure of Israel and amounts to a “fig leaf,” and an attempt at distracting attention from the difficult problems of finding peace with the Palestinians.

I’m not convinced. Politics is about the art of the possible, not the ideal and certainly not the perfect. Sometimes we have to accept imperfect solutions or motives in the interest of securing protections for people in need. What’s most striking about Israel’s LGBT record isn’t what it has achieved legislatively or through court rulings, but the fact that all this progress is happening in the heart of the Middle East. Our group trip featuring nine outspoken American LGBT advocates is simply not possible anywhere else in the region. Even compared to the progress we’ve seen recently in the United States, Israel stands out because it is such a young country enacting these reforms. Americans are notoriously forward thinking and, as a result, we tend to forget our history. It was less than 10 years ago when President George W. Bush called for a federal constitutional amendment banning same-sex marriage and scores of states enacted their own constitutional bans. The architect of this shameful attack on LGBT rights was Ken Mehlman, a closeted gay man and modern-day Roy Cohn who has since come out as gay and now raises money for marriage equality campaigns. The change afoot is new and fast but fragile. Would America be seeing such dramatic change now if Mitt Romney had won last year’s election?

Meanwhile, Israel opened its military to out gays and lesbians and transgender service members — something still barred by the U.S. military. There is relationship recognition, if not full marriage equality. The government directly funds and supports the LGBT movement, for better or worse. And it doesn’t hide that support, but promotes it.

Still, some see nefarious motives.

Upon returning home from this trip, I received a letter criticizing the visit from a group called New York City Queers Against Israeli Apartheid. It read, in part:

“The delegation met with some unspecified ‘Palestinian officials in Ramallah,’ which strikes us as nothing but a token gesture. Worse, ‘pinkwashing’ — the attempt to use Israel’s supposedly decent record on gay rights to whitewash Israeli occupation and apartheid — has been front and center in international LGBT organizing over the past several years, particularly in the US. Any delegation of LGBT ‘leaders’ to Israel that doesn’t address it is clearly intended to contribute to pinkwashing.”

Our group was sensitive to pinkwashing from the outset and several of us requested meetings with gay Palestinians and their representatives. Project Interchange worked hard to provide a balanced view of the issues and invited two Palestinian LGBT groups — alQaws and Aswat — to meet with us. Officials at the Tel Aviv and Jerusalem LGBT centers were also asked if they could assist in persuading those groups to meet our delegation or knew of other Palestinian LGBT representatives who would be willing to meet us. Sadly, the groups refused to meet with us. Change is simply not possible without dialogue and I deeply regret this lost opportunity the Palestinians had to engage with an open-minded group of visitors seeking nothing more than understanding and education.

(I invited NYCQAIP to respond to this story and they accepted. I look forward to publishing their reaction and thoughts on pinkwashing in the coming days.)

In Ramallah, we were scheduled to meet with Dr. Saeb Erekat, the chief Palestinian negotiator. He cancelled his appearance and we learned why the next day: He had just submitted his resignation to Palestinian President Mahmoud Abbas over frustration with the pace of negotiations. Abbas rejected Erekat’s resignation but it’s clear that the current talks, which began four months ago with a John Kerry-instigated deadline of nine months, are not going well. Given the sorry record of our involvement in decades of failed talks, perhaps it’s time for the United States to step aside and allow another party a chance at diplomacy.

In Erekat’s place, we met with Abu Zayyad, a scholar and Fatah and PLO adviser. It seemed somewhat silly to ask him about the state of LGBT affairs given all the day-to-day challenges facing Palestinians in the West Bank. But he insisted that there is a level of gay acceptance, even if such views differ widely among family members, noting there are no laws in Ramallah related to gay issues and that there are at least two non-governmental organizations that espouse gay rights. He spent most of his lecture discussing the state of life for Palestinians and much of what he said was not encouraging. He lamented the lack of mobility for Palestinians, who don’t have passports, making international travel difficult at best. Locally, the checkpoints that Ramallah residents must navigate just to visit nearby Jerusalem create daily headaches. Zayyad, who said he spent three months in prison for participating in an anti-Israel protest, fears that a two-state solution will be impossible five years from now, when an estimated one million Israelis could be living in West Bank settlements.

“It will explode again,” he warned.

It’s often been said that Israel is a land of contradictions and that assessment came into sharp focus during our visit. Israel celebrates its status as the only Democracy in the Middle East, while its non-Jewish residents live under a flag adorned with religious iconography. In a nation so steeped in history, Israel is just 65 years old and is surprisingly lacking in many traditions. Located in the heart of the Middle East, where homosexuality can be punished by jail time or even death as in Iran, Israel has emerged as one of the world’s most pro-LGBT nations. A country that is more than 60 percent desert has perfected drip irrigation and desalinated water from the Mediterranean to solve a decades-old water crisis. And in a nation with such ancient religious influences, a large chunk of the population — estimated by one speaker as high as 50 percent — identifies as secular or atheist.

It’s impossible to summarize our weeklong adventure in a couple thousand words. A sincere and heartfelt thank-you to the team at Project Interchange, all of our speakers and to the people of Israel for their hospitality. In addition to the aforementioned experiences, we met with law professor Aeyal Gross, entrepreneur Hamutal Meridor, Times of Israel editor David Horovitz, Jerusalem Post reporter Khaled Abu Toameh, former Knesset member Einat Wilif, film director Eytan Fox and many others. We were serenaded by Ivri Lider; walked the Stations of the Cross; toured Yad Vashem, the Western Wall tunnels, the Mahaneh Yehuda Market and indulged in far too much of Israel’s impressive cuisine. We visited Sderot, Mitzpe Ramon and slathered ourselves in mud before floating in the Dead Sea.

It was in that moment — nine of us standing half naked, covered in mud — that I perceived a lasting bond forming among us. Despite our differing views on policy back home and occasional misunderstandings, we’d been through something emotional, powerful and unique together. An experience impossible to explain or summarize here, because, well, it’s complicated.

Kevin Naff is editor of the Washington Blade. Reach him at [email protected].

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Commentary

LGBTQ people deserve freedom, a sense of home, and belonging

Latoya Nugent found refuge in Canada after fleeing Jamaica

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Latoya Nugent, center, at the March for LGBTQ+ Rights in Toronto on May 16, 2024. (Photo courtesy of Rainbow Railroad)

Seven years ago, my fight for queer liberation in notoriously homophobic Jamaica culminated in a violent and brutal unlawful arrest and detention. This was the peak of decades of persecution due to my sexual orientation and work as a queer human rights defender and activist. It completely broke me and silenced me. I suffered severe emotional trauma, from which I am still recovering years later. 

Following that life-threatening arrest, I became a shell of who I once was. I cut off communication with my community for several years, unable to face my fear of the police and the hostility of the world around me. 

In 2022, I was one of the 9,591 at-risk LGBTQI+ people who reached out to Rainbow Railroad for help. Through the organization’s Emergency Travel Support (ETS) program, which relocates at-risk LGBTQI+ people and helps them make asylum claims in countries like the U.S., I resettled in Canada where I’ve been living safely with dignity and pride. 

This Pride Month, I’m reflecting on what it means to be safe. Who has access to safety and why others are excluded from it. What is our collective role and responsibility in expanding safety for our queer and trans communities, especially those in the over 60 countries that criminalize LGBTQI+ people? 

Safety means different things to different people depending on our experiences and journeys. For me, it’s the difference between suffering and thriving, feeling worthless and worthy, and feeling hopeless and hopeful. It is the difference between displacement and belonging. 

Rainbow Railroad recently released a report that examines the state of global LGBTQI+ persecution, drawing on data from 15,352 help requests spanning 100+ countries. This report is significant for several reasons, chief among them is the reality that no other organization or government captures the breadth and depth of data on LGBTQI+ forced displacement, perpetuating the invisibility of queer individuals in humanitarian responses. The report is an important contribution to the discourse on the intersection of queer identity, LGBTQI+ persecution, forced displacement, and humanitarian protection systems. 

Of all the data and insights uncovered in the report, I was most struck by one statistic — 91 percent of at-risk LGBTQI+ individuals relocated through the ETS program reported an improved sense of personal safety. This statistic is particularly personal to me because ETS was the only relocation option accessible to me in 2022 when I reached out to Rainbow Railroad for help. 

I am in that 91 percent because I am now thriving. I feel worthy. I am hopeful about life. And I belong. 

Today, among the 120 million forcibly displaced people around the world, queer and trans individuals face compounded complications from homophobia and transphobia while trying to access protection and safety. And while the anti-gender movement continues to swell in some states, I firmly believe that the U.S. remains a global leader in refugee resettlement — which is why the U.S. government must uphold its international obligations and reverse its recent executive order that imposes severe restrictions on the right to seek asylum. 

Queer and trans individuals deserve freedom, a sense of home, and belonging — realities that flourish only when rooted in the bedrock of safety. 

There is a lot more work to be done. It’s challenging. It’s complex. It’s costly. But I have experienced firsthand what the transformative impact of Rainbow Railroad’s work has on someone’s life — that ability to lift people out of danger into safety is something worth celebrating this Pride. 

Latoya Nugent is the head of engagement for Rainbow Railroad.

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Reflecting on Center Faith’s Pride interfaith service

Much work to be done before welcoming the world in 2025

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(Photo by WINDCOLORS/Bigstock)

“We must not rest! We must not rest! We must not rest!” These words rang out in Foundry Methodist Church during Center Faith’s recent 2024 Pride Interfaith Service. Rev. Cathy Alexander, associate pastor at the Metropolitan Community Church (MCC)-Washington, DC, implored everyone in attendance to keep fighting “until the doors of churches and temples and houses of faith open wide in welcome to all people.” She quoted Reverend Troy Perry, founder of the first MCC church in 1968, from the 2000 Millennium March for Equality. 

It was a moving reminder of the many LGBTQ elders who have passed on, who have fought for LGBTQ rights today and made this service, held in a rainbow draped church, possible. This was especially meaningful as this year’s service also remembered Allan Armas — co-founder of the Pride Interfaith Service — who died this past October. 

Held on a drizzly evening, the service began with an opening drum call to gather by members of the Unity Fellowship Church of Washington, D.C., and a procession of all presenters. Church Elder and Unity Fellowship Pastor Akosua McCray offered a libation to the ancestors, like Armas, who won many of the rights that LGBTQ individuals have today. “Let us together call out their names and invite their spirit here today,” McCray shared. “Carlton Smith,” an attendee shouted from the back. “Allan Armus,” said another. “Marsha P. Johnson.” “Bishop Thomas Gumbleton.” With each name, McCray filled a red vase with water in their honor. 

Thus commenced the 41st annual Pride Interfaith Service, focused on the radical past, present, and future of LGBTQ interfaith action in the nation’s capital. The three-part service resonated with Capital Pride’s theme of “Totally Radical!” and included representatives from the DC LGBTQ+ Community Center and Mayor’s Office of LGBTQ Affairs. McCray’s Libation was the first part of the creation and blessing of a sacred space, featuring a call to the elements, directions and divine by Jonathan White of Stone Circle Wicca, a call to prayer by Nabeel Kirmani and translated by Sister Michelle Munson of Muslims for Progressive Values, and an opening prayer by Rev. Thomas Wieczorek from the National Catholic Church, among others. 

GenOut Chorus, the youth chorus for the Gay Men’s Chorus of Washington, D.C., provided music, opening with Philip Silvey’s “Always a Place for You.” Their song began a reflection on the radical origins of the Pride Interfaith Service all the way back to the 1960s. Reverend Elder Robert “Michael” Vanzant, a Doctor of Theology at the Faith Temple and one of the pioneers of the Pride Interfaith Service, recounted his own journey from a fundamentalist rural Southern community all the way to the steps of the Temple Church of God in Christ on Sunday, Sept. 19, 1982. 

Together, he and 16 others “embraced being same-gender loving and created a gathering of predominantly people of color, called a Third World gathering, to create a community for our sacred selves.” They gathered with signs, his reading “My house shall be called a house of prayer for all people” (Isaiah 56:&, Mark 11:17), after a Church elder Dr. James Tenney was told by the Bishop that by including LGBTQ+ individuals at All Souls Church DC, he had excommunicated himself from the Church. The bishop warned that Tenney’s problem was that he had no shame so the group gathered that Sunday morning before and after church “bearing witchess that we lived our lives without shame.” Thus Faith Temple was born. 

Rev. Cathy Alexander reflected on MCC’s own history, followed by Rev. Eric Eldrith, Pagan clergy with Circle Sanctuary, Kirmani, Jonathan White, myself, and Armas’s best friend cellist John Kaboff sharing fond memories and words of love and life about Armas. Eldritch spoke to Armas’s radical welcome of him as an ex-ex-gay fundamentalist to a Radical Faerie to Pagan clergy at Circle Sanctuary. This tribute spoke to the importance of all including faith communities beyond Abrahamic traditions. Pagan, Wiccan, and folk magic communities have for centuries been places of belonging and acceptance for LGBTQ+ people but are normally excluded from LGBTQ+ religious historical narratives. Armas challenged this exclusion. 

“His deeply held Jewish faith,” White explained, “led him to care passionately about justice and liberation for all people, especially LGBTQ+ people, and to pursue justice as part of his own spiritual journey. He was humane, kind, thoughtful–he was a mensch. May his memory be a blessing.” He led his community surrounded by elders until he himself became one; one of the far too few LGBTQ+ elders who see the realization of their efforts. White celebrated this queer elderhood in Armas’s faith community, of bringing his experiences and wisdom to the community he helped to create. Kaboff played a Jewish funeral piece–one performed at an annual memorial service Armas founded, and Rabbi Jake Beilin-Singer blew the shofar, an instrument sounded during High Holy Day services, in recognition of his leadership. 

Armas’s radical welcome has made LGBTQ faith experiences possible, from radical living as interfaith families, to radical justice through collective liberation, to radical presents through living as authentic selves, and radical leadership through DC’s LGBTQ+ religious leaders including the first lesbian rabbi, Julie Spitzer, at the Baltimore Hebrew Congregation in 1987. Even radical pride from that first Pride Interfaith Service in 1983. 

During this time when over 500 anti-LGBTQ bills have been introduced in state legislatures across the country, lay member of Sunstone Chapel Ebony C. Peace called us to remember, “hatred continues to come our way in full force because our liberation threatens their control. The liberation of all people threatens them. They are coming at us strong because we ourselves have become stronger.” It is only through love, Peace shared, that we can drive out hatred. This was especially true when two protestors interrupted the service, and were met with all attendees singing “This Little Light of Mine” to drown out their voices as ushers escorted them outside. 

The service ended by envisioning this future of love, including radical inclusive love in faith communities and interfaith relationships that imagine a future of collaboration with newly established groups like Queerly Gathered, introduced by Presbyterian minister Matt Nabinger and Cali Bronkema. 

Richmond looked ahead toward World Pride to be held in D.C. in 2025. Just as attendees committed this year’s service to “demonstrating the breath, depth, and sincerity of our faith, exposing the lie that anti-gay fundamentalists have a monopoly on faith and religion,” Pride Interfaith Service planner Jonah Richmond shared, next year’s service will include people from around the world remembering their LGBTQ religious histories, celebrating their presents, and pushing for LGBTQ+ religious liberation and community. It will celebrate LGBTQ elders of faith from around the world. As Alexander said, we must not rest! There is much work to be done before welcoming the world at the next service on June 3, 2025. 

Emma Cieslik served as a historian for this year’s Pride Interfaith Service.

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To comply or not to comply is not the question

Implementation of pro-LGBTQI+ rulings in Botswana and Namibia is unsatisfactory

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(Washington Blade photo by Michael Key)

Over the past five years, the highest courts in Namibia and Botswana have made significant decisions in favor of minority groups’ human rights through favorable judgments and court orders. However, the implementation of these orders related to the rights of LGBTQI+ in Botswana and Namibia has not been satisfactory so far. 

In 2016, the Botswana Court of Appeal ordered the Registrar of Societies to register the Lesbians, Gays and Bisexuals of Botswana (LEGABIBO) after they had been denied registration based on the criminalization of same-sex sexual conduct. In 2017, the High Court of Botswana pronounced that denying a transgender man legal gender recognition undermines their dignity and humanity and ordered the Ministry of Home Affairs to change his identity documents from female to male. In 2021, the Court of Appeal in Botswana decriminalized consensual same-sex sexual conduct. In May 2023, the Supreme Court of Namibia ordered the government to recognize same-sex unions concluded outside Namibia, where same-sex marriages are legal in terms of the Immigration Act. While all these cases constitute landmark cases in securing and guaranteeing the rights of LGBTIQ persons, there is a growing trend of non-implementation when it comes to such judgements.

Government officials have partially or selectively implemented or completely disregarded the court decisions. In the LEGABIBO registration case, the Botswana Court of Appeal found that it is unconstitutional to deny registration under the assumption that LGBTQI+ are not recognized in the Bill of Rights and will offend the morality of the nation. The court found that LGBTQI+, like any other citizen or group of people in Botswana, have the right to freedom of association, expression and assembly, and issued an order for LEGABIBO to be registered, an order that was fulfilled promptly. However, seven years later, in March 2024, an LBQ group’s efforts to register are met with sentiments similar to those before the LEGABIBO jurisprudence. Senior public officials resisted the highest court decision to register this new group. Although their reasons are not stated as clearly as LEGABIBO rejection, government officials are still surreptitiously blocking the registration of LGBTQI+ organizations. 

Similarly, we have observed the selective application technique unfolding in legal gender recognition cases. In this case, the government officials have interpreted this as a single order that only applies to the applicants and not “all persons.” According to anecdotal evidence based on the experiences of individuals who sought legal gender recognition, they are instructed to acquire individualized court orders, a complete misinterpretation of the court’s instructions, burdening the courts to issue duplicate orders. This selective interpretation is a covert move by government officials to undermine judicial decisions and transfer the responsibility and burden of implementation to resource-constrained individuals, limiting access to justice. What is also curious is why the court system does not address repeat applications on the same issue. 

With the decriminalization court order, the attorney general acted in contempt of the judgment when he, instead of scrapping Sections 164 (a) and (c), blatantly ignored the court order and put a bill before parliament for debate. The highest court in Botswana had made a carefully considered decision to decriminalize, as indicated by a statement from SALC (Southern Africa Litigation Center) and by many contributors to this issue; there is no need to debate; the court has decided.

In Namibia’s case, compliance with the court order means recognizing foreign partners in same-sex marriages with their Namibian partners as spouses, thereby issuing them an immigration status that allows them to reside and work in Namibia. Despite the commitment by the Ministry of Home Affairs to comply, government Officials still refuse to respect the Supreme Court ruling, as indicated by Mr. Digashu’s experience: 

“In one of my many visits to the immigration offices, the officer informed me that the court order was only meant for the couples directly engaged in the court case, unaware that I was one of those couples. I got the impression that the immigration officials have adopted a dishonest tactic to deter other same-sex couples, letting them believe that the judgement does not protect them.”

One of the most significant contributors to non-compliance is the media. The media reports on the Supreme Court decision on the Digashu/Seiller-lilies matter ran with the sensational headline “Supreme Court gives legal status to same-sex marriages,” misinforming the public and fueling negativity. Misinformation affects not only the litigants and community members but also feeds the already hostile public attitudes towards LGBTQI+ persons. Members of parliament and religious communities put pressure on government officials. Unfortunately, parliament responded with a marriage bill that contradicted the judgment, Instead of clarifying what the ruling means and whom it affects. Public officials reflect legislators’ sentiments, disregarding principles of democracy, the rule of law, and justice for all, which are clearly stated in the constitution, and further undermining the independence of the judiciary. 

These are only a few of the many court orders that government officials have disregarded to the disadvantage and inconvenience of the minority who went to court to seek redress. For example, in the case of Mr. Daniel Digashu, he is given a visitor’s visa every time he leaves the country, which means he is forced to exit the country at its expiration date or face the wrath of the law. The cost of frequent travel and the personal emotional toll on himself and his family is insurmountable. Let alone constant dealings with questions, often followed by ridicule from immigration officials.

The question, therefore, is, what must happen to government officials who disregard court orders? 

The chief justice in Kenya offers a solution to this conundrum. Recently, the chief justice observed that senior government officials are guilty of defying court orders and suggested remedies such as impeachment of individual officers responsible. Botswana and Namibia must take a leaf out of that book.   

Of great concern is also that government officials are not transparent about the limitations of the court orders to enable the litigants and beneficiaries to seek clarification from the courts, nor are they open to engaging with civil society and affected communities to improve compliance. Are the court orders vague and, therefore, challenging to implement? Being transparent about implementation constraints will go a long way in guiding civil society on how they can support the government. Even in their resource-constrained status, CSOs must continue to monitor compliance and return to the courts for enforcement, including publicizing non-compliance in the media for public engagement. 

In conclusion, the rule of law requires that all court decisions be implemented promptly, thoroughly and effectively. The government has no choice whether to execute or not execute the court orders. 

The authors are consultants at the Southern Africa Litigation Center (SALC). SALC promotes and advances human rights and the rule of law in Southern Africa, primarily through strategic litigation and capacity-strengthening support to lawyers and grassroots organizations.

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