Can Lesbian, Gay, Bi-Sexual or Transgender (LGBT) persons contract a valid marriage, have, adopt, raise kids or a family? In this piece, Ogechukwu Mary Ulasi-Ejefobiri analyses LGBT rights to marriage and family under the law
Introduction under Nigerian law? THIS work explores the legal and juris prudential issues connected with the position of Lesbians, Gays, Bi-Sexuals and Transgenders (LGBT) people in Nigeria with regard to marriage and consequentially found families.
The past decade has seen a rapid development of same – sex partnership legislation along with a more liberal willingness to accept different relationships that have previously been outside of normative values. Before now, marriage was understood as a union between a male and female adult with a view to becoming husband and wife. Most of the societal values, norms and cultures in the world have conventionally affirmed that the institution of marriage between two different sexes is the only mechanism within which a sexual desire and human procreation can be attained.
LGBT, stands for Lesbian, Gay, Bisexual, and Transgender. It has been in use since the 1990s and the term is an adaptation of the initials LGB, which was used to replace the term gay in reference to the LGBT community beginning in the mid-to-late 1980s. Activists believed that the term gay community did not accurately represent all those to whom it referred.
The “LGB” in this term refers to sexual orientation. Sexual orientation is defined as an often enduring pattern of emotional, romantic and/or sexual attractions of men to women or women to men (heterosexual), of women to women or men to men (homosexual), or by men or women to both sexes (bisexual). It also refers to an individual’s sense of personal and social identity based on those attractions, related behaviours and membership in a community of others who share those attractions and behaviours. Some people who have same-sex attractions or relationships may identify as “queer,” or, for a range of personal, social or political reasons, may choose not to self-identify with these or any labels.
A lesbian is a woman one who is romantically, sexually and/or emotionally attracted to women. Many lesbians prefer to be called lesbian rather than gay. A gay is a man who is romantically, sexually and/or emotionally attracted to men. The word gay can be used to refer generally to lesbian, gay and bisexual people but many women prefer to be called lesbian. Most gay people do not like to be referred to as homosexual because of the negative historical associations with the word and because the word gay better reflects their identity.
A bisexual person is someone who is romantically, sexually and/or emotionally attracted to people of genders both the same and different to their own.
Transgender is an umbrella term used to describe people whose gender identity (internal feeling of being male, female or nonbinary) and/or gender expression, differs from the gender they were assigned at birth.
Not everyone whose appearance or behaviour is gender-atypical will identify as a transgender person.
Traditionally, gender is assumed to be based on a binary system that attributes social characteristics to sexed anatomy.
From birth, an individual is characterized male or female based on the physical genitalia that the individual possesses and are therefore expected to conform to the characteristics associated with those genders.
The idea of Transgender is a deviation from the traditional grouping and birth
gender assignment wherein an individual behaves or takes up roles meant for the other gender to which the individual does not belong. It is a lived experience in which the individuals feel they are in the wrong body and so desires a change or identity which ought to be their supposed real anatomical
body. This feeling of being in the wrong body and identifying as a person of the opposite sex is known as being a transgender. Where, however, the transgender progresses to the stage of sex reassignment, the person becomes a transsexual. Postoperative transsexuals, most times are quick to “pass” and assimilate into their found identity while completely forgetting or erasing their previous identity and lived experience, so as to gain social acceptance from the society.
LGBT under Nigerian law To this end, some legal regimes in the world have built upon such values and promulgated some laws which regulate the relationship and union between married couples. The current position in Nigeria is that only opposite – sex partners can enter into a valid legal marriage. The same-sex prohibition Act 2014 also prohibits Marriage/civil partnership between same sex. The federal government of Nigeria criminalizes it hence making it a punishable offence under the law.
The position of Nigerian law on the subject has been faced with heavy criticisms from advocates of same sex marriage . Proponents of the abolition of same sex relationship/ marriage on the other hand also find justification for the Nigerian situation.
The position has been criticised by some members of the international community, for its violation of the principles of human rights agreed upon under the United Nations (UN) charter and Universal Declaration of Human Rights (UDHR), the Regional Human Rights Instruments and the States Constitution which provide the right to
freedom of private and family assembly and association, right to freedom of conscience, thought and religion and right to freedom from discrimination. Different views of marriage
However, the history of marriage and its legislations reflect how religion and morality are engraved into the very heart of the institution of marriage.
The differing religious denominations have been vociferous on the issue of marriage and marital status, expressing both oppressive and negative opinion. Also, the far right and those with a strong belief in conservative values have opposed the same – sex marriage issue.
The word Marriage is said to have originated from the old French term known as “Marier” which, according to the Oxford English Dictionary, is the legally or formallyrecognised union of a man and a woman as partners in a relationship.
The dictionary has attempted to redefine marriage in order to accommodate the concept of same-sex marriage but yet it has not been fully materialised still at the moment, the term marriage can be considered as formal union between male and female with a view to becoming husband and wife.
However, the dictionary in an attempt to redefine the term marriage has made a small annotation aimed at co-opting the concept of same-sex marriage. Thus the annotation reads “(in some jurisdictions) marriage can be defined as a union between partners of same – sex. In the Nigerian Matrimonial causes Act, the term “Marriage” was not defined. However, in the context of the Act, marriage can be understood to mean a legal union between male and female with a view among other things to give birth to children. This definition, though not explicit from the express provision of the Act, may be inferred from the definition of the phrase “children of the marriage” as per the provision of the Act. The provision reads: “Any child of the husband and wife born before the marriage whether legitimated by the marriage or not.”
Also the marriage Act provides the impediments of marriage under its schedule. It only recognizes the marriage between a man and a woman with the exclusion or prohibition of certain degree of persons who are affected by either consanguinity (blood relation) or affinity (the existing martial relation with any of a spouse blood relative) Same sex ‘marriage’ The issue of same-sex marriage in recent times is one of the re-current controversial issues in the world, more especially with the criminalisation of the practice. The phrase same–sex marriage can be defined as a civil union between two same couples with a view to cohabiting as husband and wife.
The Federal Government of Nigeria, in January 2014 passed into law the same-sex marriage (prohibition) Act owing to the over-whelming support from the general public in the country for the abolition of same sex marriage in the country.
Apart from the Same Sex Marriage (Prohibition) Act (SSMPA), the Nigerian Criminal Code and Penal Code criminalizes and punishes the act of homo sexuality In consideration of the above, it is conclusive to say that the type of marriage recognised by the Nigeria law is the one entered into by persons of different sex, in accordance with the Marriage Act, Islamic law or Customary law. Same Sex Marriage (Prohibition) Act (SSMPA) equally provides that only marriages contracted between a man and a woman shall be recognized as a valid one in Nigeria, any marriage contract or civil unions entered into by persons of Same – sex prohibited. Marriage contracts or civil unions entered into between persons of the same –sex is invalid and illegal and shall not be recognized or entitled to benefits of a valid marriage. Marriage contracts or civil unions entered into between persons of same – sex by virtue of certificate issued by a foreign country is void in Nigeria and any benefits accruing there from by virtue of the certificate shall not be enforced by any court of law in Nigeria.
LGBTs position with respect to marriage, family If Nigerian law is to continue to deny LGBT the right to marriage and consequentially found families, then there must be a legal and jurisprudential justification for this within the framework of Nigerian Legal system.
Drawing from Nigerian laws and international instruments that Nigeria is a signatory to, a number of questions that will assist us in properly identifying these justification within the framework of Nigerian
Law will be posed.
(a) Are there LGBT’s in Nigeria?
(b) Do they have rights like other Nigerians?
(c) Do these rights include the right to
marry and consequentially found families?
(d) Are there valid justifications for restricting LGBT’s the right to marriage?
Are there LGBT’s in Nigeria?
It is pertinent to note that there are LGBT’S in Nigeria. There has been an attempt to register a lesbian association in Nigeria. There are also Nigerians who identify themselves with the LGBT community.
In the case of Pamela Adie V corporate affairs commission. The court held that “there is no doubt that the applicant has the right to form or belong to any association of her choice as provided by section 40 of the 1999, in so far as that enjoyment of such a right is not limited by section 45 of the same constitution which provides the basis for the limitation of the rights guaranteed by section 40, instances where the right to form and belong to an association can be limited, as provided in section 45 (a) of the 1999 Constitution include situations where such a right is in conflict with public safety, public order and public morality. As such, the rights of the applicant to form and register an association are not absolute. They are to be exercised and enjoyed within the precincts of the law”.
Also section 4(1)22 of the Same – Sex Marriage Act prohibits the registration of same – sex associations. It provides as follows:
“The registration of organizations, of their meetings is prohibited, any clubs, societies as and sustenance, procession and meetings are prohibited”.
Do they have rights like other Nigerians?
Yes, they have rights like other Nigerians, this is one of the reasons the proponents of same –sex marriage have alleged that enactment of anti-gay law is in total violation of the fundamental human rights of (lesbians, gays, Bi-sexual and transgender LGBT) as enshrined in the 1999 Nigeria Constitution particularly. To wit, the right to freedom of peaceful assembly and association, right to freedom of conscience thought and religion, right to freedom from discrimination and the right to freedom of private and family life. They have canvassed arguments to the effect that their right to assemble and associate as gays and lesbians is constitutional and therefore should not be tempered with.
More so, according to some activists, the right to live and identify as an LGBT is a constitutional right and therefore should not be tempered with, as it is their private family lives to marry one another.
Do these rights include the right to marry and consequentially found families?
The Same Sex Marriage (Prohibition) Act 2014 which is the extant law in Nigeria prohibits and criminalizes marriage contract or civil union between persons of same sex.29 And provides penalties for the solemnization and witnessing of same thereof. A general overview of the Act is presented.
The Act consists of eight (8) sections. Section 1 prohibits same sex marriage or civil union, Section 2 prohibits solemnization (celebration) of same sex marriages or civil union in places of worship, including churches and mosques, Section 3 declares that only marriages contracted between a man and a woman (heterosexual marriage) are valid in
Nigeria, Section 4 specifically prohibits the registration, sustenance meetings and processions of gay clubs, societies and
organisations. Though the section restrictively uses the term ‘gay’, it is suggested that the provision of section 4 applies equally to the lesbian, bisexual and transgender. The same section 4 prohibits direct or indirect public show of same sex amorous relationship, Section 5 provides for offences and penalties under the Act. Persons who enter into same sex contract or civil union are liable, upon conviction, to 14 years imprisonment.
Any other persons who register, participate in their organizations, meetings or processions are liable, upon conviction, to 10 years imprisonment, Section 6 provides that the State High Court has jurisdiction over offences committed under the Act, Section 7 is the interpretation section while section 8 provides for the short title.
To be continued…