Commentary

The road to DADT repeal — remember their names

‘Maybe not in my lifetime, but we are going to win in the end’

Published

3 years ago

September 16, 2021

Michael Bedwell

Lt. Dan Choi handcuffs himself to the White House fence in 2010. (Blade file photo by Michael Key)

“Maybe not in my lifetime, but we are going to win in the end.” – Air Force TSgt. Leonard Matlovich, Sept. 19, 1975.

The road to repeal of the codified charade known colloquially as “Don’t Ask, Don’t Tell” (DADT), masquerading as something different than the Pentagon policy ban dating to World War II, was long and built by many hands. While a straight-identified Congress and president were necessary to reach the destination, LGBT Americans made it happen. But “DADT Speak” can unintentionally erase the some 100,000 discharged before its creation. The following focuses on some of the First Volunteers; those very few service members who chose to risk their careers by outing themselves, putting faces to the ban, without which it would still be destroying lives.

In March 1974, Leonard Matlovich was the happiest he’d ever been in his life. It had taken him until he was 30, and surviving thoughts of suicide-by-war and direct suicide, to finally accept and embrace that he was gay, and now he had a job that he loved: Race Relations Instructor for the Air Force. He was so good in this job that he was sent around the country to train other instructors. An African-American fellow instructor said that, “He has the classroom in the palm of his hand.”

His department chief wrote, “As a Race Relations Instructor there is none better. His mastery of group dynamics and group facilitation has enabled him to conduct seminar after seminar around the difficult and sensitive subject of race relations without incident. He should be promoted to Master Sergeant well ahead of his contemporaries.”

And then he read an interview with Frank Kameny in the Air Force Times.

World War II veteran Frank Kameny had a genius IQ and Harvard Ph.D. in astronomy. Hired by the Army Map Service (AMS) in 1957, his dream of being one of the first astronauts, in fact, his entire scientific career, crashed and burned when the AMS learned he was gay. LGBs were already banned in the military; now, per Republican President Dwight Eisenhower’s Executive Order banning “sexual perversion” among civilian federal employees, he was fired five months later, and, worse, blackballed from employment by any other federal agency or private company or university receiving federal funding.

Unaffiliated with any gay group, he did what no other fired gay person had done. Eight years before Stonewall, he appealed his case against the Secretary of the Army to the Supreme Court in a self-penned brief whose eloquent fury still stuns today.

“The government’s regulations, policies, practices and procedures, as applied in the instant case to petitioner specifically, and as applied to homosexuals generally [including in the military], are a stench in the nostrils of decent people, an offense against morality, an abandonment of reason, an affront to human dignity, an improper restraint upon proper freedom and liberty, a disgrace to any civilized society, and a violation of all that this nation stands for. These policies, practices, procedures, and regulation have gone too long unquestioned, and too long unexamined by the courts.”

Yale Law School professor William Eskridge, Jr., later called it revolutionary, “the birth of Gaylegal Equality Arguments”; and Frank “the Rosa Parks and the Martin Luther King and the Thurgood Marshall of the gay rights movement.”

In a “court of last appeal” letter to newly inaugurated President John F. Kennedy in May 1961, two months after the Court refused to hear his case, Kameny, still on his own, also denounced “the policies, practices, and official attitudes of the military” and “less-than-fully-honorable discharges.”

That November he cofounded the militant Mattachine Society of Washington (MSW; not a chapter of original Mattachine) whose four missions included challenging military homophobia— 29 years before the creation of the first national group dedicated to fighting the ban, and 32 years before its codification into DADT.

MSW’s unprecedented three pickets of the White House in 1965 included signs protesting the ban, and he led a picket at the Pentagon itself.

“STOP Wasting Taxpayers Money on Hunts for HOMOSEXUALS.” “65,000 Homosexual Sailors DEMAND NEW NAVY POLICY.” “Quarter Million Homosexual American Servicemen & Women Protest Armed Services Policies.” “15 Million U.S. Homosexuals Protest Treatment by Armed Forces.”

That year the Navy alone kicked out at least 1,365—some 100 more than all the branches kicked out in the worst year under DADT.

The ban was the subject of the first same day, nationally coordinated gay rights protests in 1966. Frank led another Pentagon picket then flew to New York City to lead a protest there. He was essentially the only non-lawyer source of help for LGB service members trying to avoid being kicked out or at least be granted an Honorable Discharge characterization.

Since at least 1964, he’d been looking for a “perfect test case” — a service member with a clean record willing to out themselves and fight the ban in court. Leonard Matlovich read that in the Air Force Times and called him describing his three tours in Vietnam, Bronze Star, Purple Heart, and outstanding performance ratings. After a number of meetings, Leonard agreed to carry the banner, coming out on the front page of The New York Times and on the CBS Evening News with Walter Cronkite on Memorial Day 1975.

The response was seismic, rippling from the Times to the Kokomo, Indiana, Tribune and around the world. So unlike the mainstream concept of a gay male one reporter asked him if he was really gay. The effect was magnified when he appeared in uniform on the cover of Time magazine with the bold, black caption “I Am a Homosexual”—putting a face on the ban for millions for the first time. Gay historian Nathaniel Frank, author of the definitive book on the evolution of DADT, “Unfriendly Fire,” said, “it began a national discussion on gay rights.”

Accounts of his four-day discharge hearing filled newspapers and TV screens. When the Air Force board couldn’t see past “Homosexual” to the perfect airman, they recommended his discharge; Leonard telling the crush of reporters outside: “Maybe not in my lifetime, but we are going to win in the end.” He failed to overturn the ban, but a 1981 Pentagon mandate that, barring extenuating circumstances such as sex on base, all discharge characterizations for gays should be Honorable can be linked to his case. No one imagined how short his lifetime would be, but he filled it fighting for gay equality. Frank was the lead honorary pallbearer, walking by the horse-drawn caisson carrying his body in 1988, and today his grave in Washington’s Congressional Cemetery with its iconic gravestone is a place of pilgrimage next to a Veterans Administration cenotaph for Frank.

“Exemplary” Army Reserve Drill Instructor Miriam Ben-Shalom was honorably discharged in 1976 after refusing to deny she was a lesbian during questioning about her criticizing the discharge of Leonard Matlovich. In 1980, a federal judge ruled that her discharge violated the First, Fifth, and Ninth amendments of the Constitution—the first court ruling that the ban was unconstitutional and 30 years before the ruling against DADT in the Log Cabin Republicans challenge—and ordered her reinstated. The Army simply ignored the order for seven years; until a Circuit Court forced them to return her to duty. But they refused to allow her to reenlist at the end of that period of service.

The Supreme Court refused to hear her appeal in February 1990. Three months later, she and five other veterans founded Gay, Lesbian & Bisexual Veterans of America, the first such national lobby group; today American Veterans for Equal Rights (AVER). She and several other veterans were arrested at the White House in 1993 protesting the ban’s refashioning as DADT. She was arrested there again in 2010 protesting President Obama’s slow walk on repeal along with eight fellow veterans and four civilians including myself.

Sgt. Perry Watkins’ 16-year adventure in the U.S. Army began when Lyndon Johnson was president and would not end until George Bush père sat in the Oval Office. It spanned the globe, sometimes a comedy, sometimes a tragedy. It was sometimes even a musical comedy—but it was always, just as the ban itself, nonsensical; here ignoring that he was gay, there trying to kick him out because he was gay. Year after year, time after time, he demanded justice; and, in the end, it was his own truth that set him free—the truth he had told from the very beginning, during his draft physical in 1967 when he was 19 and checked the box indicating “homosexual tendencies.”

The first gay African-American soldier to make headlines, while the Army ignored a court order to reinstate Miriam, in May 1982, Watkins also became the first out gay service member returned to duty by a court. But he was kicked out again, and, eventually, the Supreme Court let a lower court ruling stand that he should be reinstated in the name of fairness. Like Leonard, for whom he was an honorary pallbearer in 1988, he chose a settlement; passing himself in 1996.

Petty Officer Keith Meinhold, a certified Master Training Specialist teaching sonar crews on P-3 Orion aircraft how to hunt submarines outed himself on ABC’s World News Tonight on May 19, 1992. Formerly recognized as “Aircrew Instructor of the Year,” his usually perfect performance ratings drop. Without any evidence, they claimed knowledge of his sexual orientation had “adversely affected his performance of duty and adversely affected the good order and discipline.” Though given an honorable discharge he sued and was ordered reinstated. Overall, his return was met positively, and his crew continued to win new awards. He retired four years later with full military honors, naval band music, a Navy Achievement Medal, and a 60-foot American flag.

Purposely coinciding with Meinhold’s coming out the same day, 25-year old Navy Lieutenant Junior Grade Tracy Thorne, first in his class in flight training, outed himself on “Nightline.” A bombardier-navigator flying A6 Intruders, like a ship on a roiling sea, his status repeatedly changed due to the unknowns of what might happen—or not—to the ban following Bill Clinton’s possible election, then election. He joined a five-week, 32-city cross-country veterans bus Tour of Duty to try to drum up public support for an end to the ban. He testified against the ban before the Senate Armed Services Committee — homophobic Sen. Sam Nunn’s dog and pony show where he was jeered by 1,000 sailors and Marines. To wild applause and laughter, infamous racist Sen. Strom Thurmond told him, “Your lifestyle is not normal. It’s not normal for a man to want to be with a man or a woman with a woman. Have you considered getting help from a medical or psychiatric standpoint?” He filed a lawsuit in 1994 and returned to active duty with the stipulation that the Navy could attempt to discharge him under DADT. In 1995, he was discharged. He sued again; his challenge ending when the Supreme Court refused to hear his case.

Their high-profile outings were planned to coincide with the same-day introduction of the long forgotten end-the-ban Military Freedom Act of 1992. Popular war hero and chair of the Joint Chiefs Colin Powell’s statements to Congress killed not only that bill but crippled Bill Clinton’s intentions even before he had the party’s nomination. Powell: “Skin color is a benign, non-behavioral characteristic. Sexual orientation is perhaps the most profound of human behavioral characteristics.” His disingenuous, pseudo intellectual way of saying, “they choose to be gay so it’s not a civil rights issue.”

Navy Reserve Lieutenant Zoe Dunning outed herself at a Jan. 16, 1993, rally in support of Keith Meinhold. She was allowed to stay in after convincing a board that “status” did not equal “conduct” — a finding immediately forbidden in future cases by the Pentagon. By retirement in 2007, she’d risen to the rank of commander, having served openly for more than 13 years. In December 2010, as co-chair of Servicemembers Legal Defense Network (SLDN) Board of Governors, she was invited to stand next to the president as he signed the provisional DADT repeal bill. Co-founder Dixon Osburn just released “Mission Possible,” his account of the crucial role SLDN played in ending the ban.

Former Marine of the Year Sergeant Justin Elzie had served 10 years when he outed himself on “World News Tonight” on Jan. 29, 1993. The Corps reneged on their existing approval for his early separation in April with benefits, moving to honorably discharge him immediately with none. He testified to Congress in support of ending the policy ban. A judge ordered he be retained until his legal challenge was resolved. He eventually settled out of court, receiving the early retirement bonus after having served as an out gay Marine for four more years during which he was recommended for promotion three times. He was one of our 13 arrested at the White House in November 2010 demanding DADT repeal.

Twenty-three-year old Desert Storm veteran and former Sixth Army Soldier of the Year Joe Zuniga outed himself at a huge event honoring gay military activists the night before the April 1993 March on Washington, including Meinhold and Thorne. “The roar was deafening. People cried. People hugged each other.” – The Washington Post. The next morning the three joined the veterans’ contingent in the march with hundreds of thousands.

Conversely, his Army command was enraged, discharging him, however honorably, in record time—in less than a month. They also brutally demoted him from Sergeant to Specialist after falsely accusing him of wearing a decoration he had not earned. His battalion commander melodramatically threw newspapers in which his story had appeared into a trashcan during his administrative hearing. But he continued to speak out all across America, and appeared in the historic first national gay TV ad; created for the Campaign for Military Service, an ad hoc group representing multiple existing gay groups hoping to offset the rabidly homophobic campaign of those in and out of the Democratic-controlled Congress determined to prevent President Bill Clinton from ending the ban. He also travelled the country and TV newsrooms trying to promote public support.

Army First Lieutenant and Iraq veteran Dan Choi came out on “The Rachel Maddow Show” on March 19, 2009, resulting in his discharge in June 2010. Far from just another came-out-on-TV story, Dan was the first Asian-American to become a leader in the anti-ban movement, and shook that movement when he began to engage in nonviolent direct action in the second year of the Obama administration after the president broke his promise to start working with Congress to end DADT when he took office. Dan allied with new direct action group GetEQUAL, and a small but growing number of people joined him in handcuffing themselves to the White House fence (including transgender veteran Autumn Sandeen); each time growing more media coverage, never more critical than in November 2010 when word went round that the repeal provision bill, stalled in the lame duck Congress, was going to be withdrawn likely damning the chance for repeal for years. Republicans would take over the House in 2011.

I have no proof that the action Dan led that month, joined by Miriam, Justin, et al., helped salvage the bill and, thus, repeal. I can only say that I am proud to have been next to them; one wrist handcuffed to the White House fence behind me; and holding Leonard’s Time magazine cover aloft with my free hand.

“Remember your roots, your history, and the forebears’ shoulders on which you stand.” – Marion Wright Edelman.

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Commentary

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

Latoya Nugent found refuge in Canada after fleeing Jamaica

Published

6 days ago

June 27, 2024

Latoya Nugent

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.

Commentary

Reflecting on Center Faith’s Pride interfaith service

Much work to be done before welcoming the world in 2025

Published

2 weeks ago

June 21, 2024

Emma Cieslik

(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.

Commentary

To comply or not to comply is not the question

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

Published

1 month ago

May 22, 2024

Daniel Digashu and Anna Mmolai-Chalmers

(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.