Commentary
The war in Gaza impacts all of us and democracy too
ICJ case accuses Israel of committing genocide against Palestinians in enclave.
BY JULIE DORF | As a leader in the LGBTQI+ movement and co-chair of the U.S.-based foreign policy organization the Council for Global Equality (CGE), I am calling on my colleagues in the progressive foreign policy community to urgently discuss alternative policy solutions to our government’s support of the deadly war in Gaza and collectively begin demanding solutions that respect the dignity, rights and security for all.
The Council for Global Equality (CGE) works at the intersection of international human rights, U.S. foreign policy and LGBTQI+ communities. We primarily focus on influencing the U.S. government’s policies, programs and foreign assistance to do more good in the world, recognizing that our democracy typically only does the right thing when its citizens demand it — whether through elections or ongoing civic engagement by organizations such as ours. We also recognize that, deservedly or not, the United States wields outsized power in the world; as responsible citizens of this mighty country, it is therefore incumbent on us to actively engage and try to direct its power towards good. Our organizational principles include key tenets such as “freedoms abroad and freedoms at home are linked,” “democracy can only be rooted in secular, inclusive values,” “equal treatment is at the heart of human rights” and “one population’s rights cannot transcend those of another.” The full statement of principles is on our website.
When Hamas launched its terrifying attacks in southern Israel on Oct. 7, followed by Israel’s revengeful response in Gaza, I thought at first that this was not a CGE issue. As a progressive Jew, I was mostly consumed by my own relationship with the ongoing occupation and I feared for my friends in the region. I was horrified and heartsick, glued to Al Jazeera and other news sources. But I was not at all surprised by the attack, except perhaps that it had taken this long for a major uprising by Palestinians. I reached out to activists, friends and family in Israel, Palestine, Lebanon and Egypt. I felt no contradiction being equally upset by the loss of lives on all sides and holding multiple truths at once. Yes, Hamas is a terrorist organization that brutally murdered my people. Yes, Israel has been occupying, persecuting, and actively undermining a Palestinian state for its entire existence. And yes, the government of the United States and its Jewish community have both been enabling this horrible injustice for as long as I can remember. This crisis was just more of the same but on a much, much more painful scale.
My position on Palestine and Israel
I grew up in a staunchly Zionist environment, visited the region multiple times (Israel and the West Bank and Gaza,) and evolved through my human rights career into a proud Jewish anti-Zionist. I believe in the land of Israel being a vital, safe and sacred homeland for Jews and Muslims, as well as for Christians, Druze, Armenians, Samaritans and others.
I do not, however, believe in a Jewish supremacist state, which is the way that Israel’s current policies have been constructed, believing that only by having a majority of Jews in the country of Israel can it be a secure Jewish “homeland.” I believe it can and must be a secure homeland for different religions simultaneously. Indeed, if you’ve ever visited Jerusalem, you know it already is a homeland for Jews, Christians, Muslims and Armenians (albeit not safe.) Yes, Netanyahu is perhaps the most far-right authoritarian leader we’ve seen in Israel. But long-time policies from urban development, road construction and water to the separation wall and vast numbers of political prisoners, and other Israeli government policies have been constructed to maintain the supreme rights of Jews over Palestinians. These policies that are intended to maintain inequality by ethnicity are simply inherently incompatible with a genuine democracy. At this moment in the world, when democracy needs to be actively defended in so many countries, an exception clause for Israel is both indefensible and counterproductive.
My political positions on Israel and Palestine have stirred up great pain and conflict in my family and community. But I have been committed to talking to my own people — in this case, American Jews — about these issues because that is where I can have the most influence to make change, however small that may be. Many progressive Jews — and particularly younger generations — share my beliefs but are afraid of being ostracized from their Jewish communities or families or being labeled a “self-hating Jew.” I know that I am a proud Jew.
Antisemitism and anti-Zionism
I am also no stranger to antisemitism — even working in the LGBTQI+ global movement, I have experienced my share of antisemitism. It mostly takes the form of microaggressions, such as comments about “your banker friends in New York” or “I won’t succumb to your Jewish guilt moves.” Then there was the moment when a presenter at a queer conference on closing civic space in Poland used a political cartoon from a local newspaper that had a picture of an Orthodox Jew with a huge nose, wearing a Star of David that said “NGO” on it — but didn’t recognize that NGO was overlaid on a profoundly antisemitic image. Or the time when someone posted a conspiracy theory full of lies that “co-religionist George Soros” was somehow connected West Bank settlement building on a large global queer listserv, and the moderator of the list told me that my concerns were unfounded and that “the post was not antisemitic.” And I’ll definitely never forget when an activist in Malaysia who had never met a Jew before asked to feel my head for my horns. At least they asked for consent!
Today’s genuine rise in antisemitism around the world is more overt and scary. I’m used to armed security guards at the entrances to Jewish institutions such as our schools, museums and synagogues to guard against the occasional violent act of antisemites. But this increased level of hate speech, online antisemitism, Nazis in public and murder threats are understandably terrifying my community. This is precisely why the distinction between this very real rise in antisemitic violence and anti-Zionist expression is critical to distinguish.
It is dangerous for Jews and others to conflate antisemitism with anti-Zionism because that conflation misdirects attention from genuine antisemitic violent threats and increases polarization in a year when our unity to protect democracy is more important than ever. Further, it is terrible for the freedom of thought and speech, undermining legitimate calls for justice for Palestinians and silencing people from expressing their true thoughts and reactions. All these things are harming U.S. foreign policy and making U.S. citizens less safe.
We can agree to disagree about the connotations of “from the river to the sea” or the word “intifada,” but it is not inherently antisemitic to wish for equality in that location or to desire a one-state solution to the conflict between the state of Israel and the stateless citizens of Palestine or to wish to organize peaceful resistance to oppression (such as the boycott, divestment and sanctions movement.) This is legitimate political discourse, essential to finding a peaceful solution to this ongoing conflict, whether that be a one-state, two-state, confederated or some other solution we haven’t yet imagined.
Further complicating matters, progressives tend to minimize antisemitism because of Ashkenazi white skin privilege and class privilege, whether real or imagined. Yet Eastern European Jews weren’t considered “white” for many decades, Sephardic Jews are still not considered “white,” and there is increasing visibility of Jews of color. Regardless of the color of our skin, we’ve not been part of any dominant culture for most of our existence as a people — until the creation of the Israeli state. But in the current leftist paradigm of “settler colonialism” as it applies to the State of Israel (which is, in fact, what the early founders of Israel called themselves), often the role of historical and current antisemitism is either dismissed or ignored. This is problematic and limits solidarity. It adds to the lopsided empathy that occurs in both directions and limits civil discourse and healing.
There is no doubt that antisemitism over time, and particularly the Holocaust, played a critical role in the creation of the state of Israel, as well as in the historical trauma and epigenetic fears that live inside so many of us Jews. That trauma was further inflamed by Hamas’ attack on Oct. 7, just as the trauma of the Nakba was reignited for Gazans when Israel’s counter-attacks began and 90 percent of Gazans were forced to leave their homes, regularly going without food. It might seem obvious that this sense of collective victimhood does not give license to victimize others, but it certainly creates a major blind spot in Jewish identity. It is overdue for Jews around the world — and especially in Israel — to update our story and live up to our stated values as a people committed to “Tikkun Olam,” or to repair the world. As painful as it is, we must take a hard look at the missteps in the history of Israel and rectify them urgently. We must face the current crisis and rise in antisemitism with the clarity that anti-Zionism is not synonymous with antisemitism. We must also be able to sit with the discomfort or sense of threat from anti-Zionist arguments or even chants, or genuine discourse about a different role for the U.S. vis-à-vis Israel, rather than reflexively labeling all of that antisemitic.
Legitimacy in global movements
So, when activists in the Middle East began asking queer groups to show up in solidarity with Palestine and, in particular, to join the calls for a ceasefire, I had no problem as a co-chair of CGE to craft a statement on behalf of our organization. It was not only consistent with our stated principles, but it was also a question of legitimacy for us in our global movement. What so many Americans do not quite understand is that much of the world considers Israel a pariah state; as such, the “special relationship” the United States maintains with a country considered akin to apartheid South Africa is very hard to explain or defend. Yet here in the United States, we get a totally different perspective, highly influenced by the commercial media, by mainstream Jewish community institutions (many of which are quite out of step with their own constituents, particularly younger people) and also by the strong forces of the intensely Zionist Christian right (Did you know that Christians United for Israel has more members than AIPAC?) And perhaps, as Peter Beinart posits, as Americans, we identify unconsciously with Israelis because we, too, do not wish to rectify our past treatment of Native Americans in our own founding of our country. This creates a grossly asymmetrical empathy for the “Israeli side” (which, by the way, is hardly monolithic) for many in the United States.
Yet, for many of us in the fields of international human rights, global development, or foreign policy, we engage regularly with colleagues outside of the United States who have a more balanced concern for the Palestinians. Indeed, we cannot do our work very effectively without such solidarity and trusted relationships. Consequently, it is very difficult to sustain an organizational position that justifies the levels of U.S. aid to Israel (over $3B annually,) particularly the extra $14.5B in military aid for their war on Gaza, some of it circumventing required congressional notifications, which everyone knows by now has overwhelmingly killed civilians and children and over 20,000 people. Then to see that with the U.S. government’s enormous investment, the Israeli military and intelligence could be so arrogantly incompetent, caught without any plan or reasonable response to the Oct. 7 Hamas attacks, makes that incredibly large investment even more questionable. And yet, most D.C. organizations still simply shy away from this issue.
Pinkwashing and impact on the LGBTQI+ movement
For the global LGBTQI+ movement, “pinkwashing” has further enraged many in queer communities across the globe. Pinkwashing is the promotion by the Israeli government (or any other government) of its pro-LGBTQI+ policies to intentionally distract from its human rights abuses against Palestinians (or other horrific rights abuses.) In truth, all the rights that have been disingenuously touted by the Israeli government to show a contrast to surrounding Arab states in the region were hard-fought and won by the country’s LGBTQI+ community itself through the courts, not simply handed to the community by the State of Israel. This has been a key part of the intentional campaign by the Israeli government to maintain an image that the country is more similar to Western democracies and, therefore, more deserving of their support.
But in many ways, it has backfired when it comes to LGBTQI+ communities and certainly alienated Israeli LGBTQI+ civil society from the global movement, and in particular from other LGBTQI+ organizations in the region. It is considered so taboo to be connected to Israel that no other Middle East or North Africa (MENA) representatives would show up to a queer MENA event if Israeli civil society were even invited. (And, yes, there are LGBTQI+ groups large and small in Jordan, Lebanon, Iraq, Iran, Tunisia, Morocco, etc.) Israel’s pinkwashing also helped spawn stronger queer support for Palestinians and for the BDS movement. A clear example of this pinkwashing continues now during the war, when the State of Israel’s official X (formerly Twitter) account showed an IDF soldier unfurling a rainbow flag in front of a tank in Gaza and another one, claiming to be “in the name of love,” in front of a destroyed village. For many of us, this was beyond offensive, it was stomach-churning.
For all of these reasons, CGE issued our statement calling for a ceasefire in late October. Most of our organizational members were very pleased with its release, except for the ADL, which chose to end its membership in CGE over our differences on this issue. Human Rights Watch and Amnesty International, both long-standing CGE members, have strongly criticized this war, documenting war crimes and other human rights violations, both by the Israeli state against Palestinian civilians and by Hamas against Israeli citizens. But other than those large human rights organizations, the most vocal members of the foreign policy community in Washington have been the large humanitarian assistance providers, which have passionately argued for a ceasefire. The visible resistance by Jewish Voice for Peace and other progressive Jewish organizations, together with Palestinian rights organizations, have been the primary other civil society entities articulating a different vision for U.S. policy on Israel and Palestine. Between the street protests, potentially losing the next generation’s vote, and the upset from federal employees themselves, this does seem to be getting the Biden-Harris administration’s attention, forcing very small shifts toward using its leverage to reign in Israel’s military violence.
Where is the US foreign policy community?
So, where is the rest of the Washington foreign policy community? Clearly, others must have similar concerns for their credibility with partners around the world during this crisis and feel uneasy every day as the news appears. How can we not do better than this to hold our government accountable to our values of equality and justice? Where are the media watchdog organizations and why are they not challenging such asymmetrical coverage of the war? I understand that people are scared to “take a side,” to offend someone, to lose big donors and to lose legitimacy in the eyes of our U.S. government allies. God forbid we get canceled by saying the wrong thing or making a mistake.
But we must do better than that; we must have the courage to advocate for a more balanced U.S. policy on Israel and Palestine and to call on the Biden administration to be a more honest broker in the conflict. If foreign policymakers believe that the United States needs to be Israel’s best friend, to be a trusted nation they will listen to, then we certainly have paid our dues by now. We must leverage decades of expensive investments more strategically and effectively.
It is time for the progressive foreign policy community in the United States, together with principled Jewish organizations, Palestinian leaders and others sincerely invested in peace to come together to articulate a better way forward for U.S. foreign policy. We must demand conditions on U.S. aid, not just on ending illegal settlement building in the West Bank, but on actually dismantling settlements if the U.S.-stated policy goal of helping to create a Palestinian state is sincere. We must condition military aid appropriately to avoid its use in war crimes. We must demand and help secure the release of Palestinian leaders in Israeli prisons who could become the more legitimate, moderate leaders of the next iteration of the Palestinian Authority. This would undermine the Hamas movement far more effectively than the current military campaign is doing by offering better leadership options. We must demand the release of the Israeli hostages in Gaza and the Palestinian political prisoners in Israel. And we must end the immense blank check support of billions of taxpayer dollars to Israel by requiring a genuine restart of peace negotiations. These are just some of the policies that we should be advocating for – the point is that we need to have those debates as a matter of urgency within our own foreign policy communities in Washington.
As an LGBTQI+ U.S. foreign policy organization, we should be a part of those discussions, not just because queer Palestinians and queer Israelis are impacted, and not just because it’s urgently critical for the safety of all Palestinians and Israelis, but because, indeed, we are all impacted. Americans will be safer. Jews will be safer. Democracy might even be safer.
Julie Dorf is the co-chair of the Council for Global Equality.
Commentary
LGBTQ people deserve freedom, a sense of home, and belonging
Latoya Nugent found refuge in Canada after fleeing Jamaica
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
“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
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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