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Namibian Court Rules It Cannot Require Recognition of Same-Sex Marriages

Legal Reform Needed to Protect LGBT Rights

Anita Elfriede Seiler-Lilles (1st L) and Anette Seiler ( 2nd L, applicants in the case), Phillip Lhl (C) and Guillermo Delgado (4th R) who have a pending case regarding domicile and the nationality of their children born by surrogate, and Johan Potgieter (3rd R) and Daniel Digashu (1st R, both applicants in the case) are seen having a debrief after the court verdict in Windhoek, Namibia on January 20, 2022.  © 2022 HILDEGARD TITUS/AFP via Getty Images

Namibia’s High Court ruled last week that it could not require that the marriages of two same-sex couples conducted outside of the country be granted legal recognition.

The couples, legally married in South Africa and Germany, had been unable to obtain a work permit and residency permit, respectively, for their non-Namibian spouses and so launched a court case against Namibia’s failure to recognize same-sex marriages.

In its decision, the court expressed sympathy with the couples’ position and emphasized that discrimination based on sexual orientation is unacceptable under domestic and international law. Nevertheless, it concluded that the court was bound by a decades-old Supreme Court judgment that said the Immigration Control Act, which provides certain benefits to spouses of Namibian citizens, does not recognize same-sex relationships.

Madam Jholerina Brina Timbo of Wings to Transcend Namibia Trust, a transgender rights organization, expressed disappointment about the decision but said it was a silver lining that the court expressed concern over the unfairness of past rulings.

Linda Baumann of Namibia Diverse Women’s Association, a feminist organization, pointed to other recent court victories in Namibia and told Human Rights Watch it was a step in the right direction that judges were “affirming the existence of LGBTI people as part of our community.”

Globally, 31 countries currently recognize the right to marry for same-sex couples. When those couples travel to other countries however, their marriages may or may not be recognized, potentially making them ineligible for spousal benefits related to taxation, inheritance, insurance, housing, pensions, residency, and even parenting and family law.

The European Union’s top court has required member states to recognize the marriages of same-sex couples performed in other member states to ensure their freedom of movement. Israel also allows same-sex couples to register marriages performed abroad.

The couples are likely to appeal, and so either Namibia’s Supreme Court could overturn its old ruling, or lawmakers could act to change the status quo. As more countries recognize marriage equality, Namibia and other states should also take steps to ensure that same-sex relationships are respected and protected.

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