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Recognition of same-sex unions in Lesotho

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Marriage

Recognized

Civil unions or registered partnerships but not marriage
Minimal recognition
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Notes
  1. ^ a b Performed in the Netherlands proper (including the Caribbean Netherlands), as well as in Aruba and Curaçao. May be registered in Sint Maarten in such cases, but the rights of marriage are not guaranteed.
  2. ^ Neither performed nor recognized in Niue, Tokelau, or the Cook Islands.
  3. ^ Neither performed nor recognized in six British Overseas Territories.
  4. ^ a b Neither performed nor recognized in some tribal nations. Recognized but not performed in several other tribal nations and American Samoa.
  5. ^ Registered foreign marriages confer all marriage rights. Domestic common-law marriages confer most rights of marriage. Domestic civil marriage recognized by some cities.
  6. ^ a b c d e The Coman v. Romania ruling of the European Court of Justice obliges the state to provide residency rights for the foreign spouses of EU citizens. Some member states, including Romania, do not follow the ruling.
  7. ^ A "declaration of family relationship" is available in several of Cambodia's communes which may be useful in matters such as housing, but is not legally binding.
  8. ^ Guardianship agreements, conferring some limited legal benefits, including decisions about medical and personal care.
  9. ^ Inheritance, guardianship rights, and residency rights for foreign spouses of legal residents.
  10. ^ Courts have recognised guru–shishya, nata pratha or maitri karar–type contractual relationships, but they are not legally binding.
  11. ^ Some cities and prefectures issue partnership certificates, but they are not legally binding.
  12. ^ Marriages conducted abroad between a Namibian national and a foreign spouse recognized for residency rights.
  13. ^ Hospital visitation rights through a "legal representative" status.
  1. ^ a b Not yet in effect.
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Lesotho does not recognise same-sex marriages or civil unions. The Marriage Act, 1974 does not provide for the recognition of same-sex unions.

Historical recognition of same-sex relationships

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Historically, Sotho society recognised motswalle relationships formed between women during adolescence.[1] Often, a motswalle relationship was acknowledged publicly with a ritual feast and with the community fully aware of the women's commitment to one another.[2][3] Motswalle relationships differed from a Western perspective of same-sex relationships. Women in motswalle relationships "marr[ied] men and conform[ed], or appear[ed] to conform, to gender expectations", and did not have a different social identity even though they were in committed relationships with other women. Women in motswalle relationships also differed from a Western perspective of heterosexual female friends. Researcher William J. Spurlin wrote that "it is important not to simply translate into English [the] use of the Sesotho word motswalle [...] as lesbian." Nevertheless, Spurlin stated that "it might be possible to place motswalle relationships on the lesbian continuum to discuss, debate, and imagine them theoretically as possible sites of lesbian existence, given the close emotional and intimate bonds between the women, but with the stipulation that the relationships not be reduced to Western understandings of lesbian."[4] As Lesotho became more modernized, it became exposed to Western culture and homophobia, erasing the motswalle relationships.[5]

In 1941, an official enquiry found that Basotho men were "enthusiastically participating" in bokonchana relationships, also known as "mine marriages" between men, as well as public cross-dressing and same-sex marriage ceremonies.[6]

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Same-sex sexual activity legal
  Same-sex marriage
  Limited recognition (foreign residency rights)
  No recognition of same-sex couples
Same-sex sexual activity illegal
  Prison but not enforced
  Prison
  Death penalty on books but not enforced
  Enforced death penalty

The Marriage Act, 1974 (Sotho: Molao wa Lenyalo, 1974;[7] Act 10 of 1974) does not expressly forbid same-sex marriages and does not explicitly define marriage as being between "a man and a woman", but generally refers to married spouses as being of the opposite sex. In addition to civil marriage, customary marriages entered into according to Sotho custom are also recognised in Lesotho.[8] Historically, married women in Lesotho were considered "legal minors" during the lifetime of their husbands, were severely restricted in economic activities, were unable to enter into legally binding contracts without their husbands' consent, and had no legal standing in civil court. This changed with the passage of the Legal Capacity of Married Persons Act 2006 (Act 9 of 2006),[9] which was approved by the Parliament of Lesotho in November 2006.[10]

In 2019, the Transformation Resource Centre (TRC), an organisation advocating for justice, peace and participatory development, called on the government to legalise same-sex marriage and adoption by same-sex couples. "There is no legislative framework for protection of the rights of [LGBT] people and other sexual minorities. This omission leads to discrimination of various forms including denial of access to healthcare services, targeted assaults by the police, non-recognition of their unions as lawful marriages and their prohibition to adopt children", according to a 2019 TRC report. The report also noted that many LGBT people were being forced into heterosexual marriages. That same year, Director of Gender Matau Futho Letsatsi, working for the Ministry of Gender and Youth, Sports and Recreation, acknowledged that there was no law allowing same-sex marriage in Lesotho.[11]

In 2022, High Court Chief Justice Sakoane Sakoane said the judiciary would be a "key role player" in ensuring equal rights for LGBT people in Lesotho, "In this Kingdom of Lesotho, the [LGBT] community factually exists as part of society. […] There is no local jurisprudence yet on what these rights mean for the [LGBT] community, even though the Constitution guarantees two important rights: the right to respect for private and family life (in section 11) and freedom from discrimination (in section 18)."[12] The Constitution of Lesotho does not expressly address same-sex marriage, but forbids discrimination on various grounds—but not sexual orientation—and states that every person shall be entitled to equal protection under the law.[13] Article 40 of the Constitution grants foreign nationals who have married a Lesotho citizen citizenship after 5 years of cohabitation in Lesotho.

Religious performance

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The Anglican Church of Southern Africa, which has one diocese in Lesotho, does not permit same-sex marriages. Its marriage policies state that "holy matrimony is the lifelong and exclusive union between one man and one woman". In 2016, the synod voted against blessing same-sex unions. The decision split the church, with several dioceses deciding to nonetheless proceed with the blessing of same-sex relationships, notably the Diocese of Saldanha Bay in South Africa.[14] Archbishop Thabo Makgoba expressed disappointment with the decision not to bless same-sex unions, but added that "all is not lost", expressing hope that the matter would be debated again in the future. Former Archbishop Njongonkulu Ndungane also expressed his disappointment with the decision.[15] In 2022, Bishop Vicentia Kgabe signed a statement expressing support for the inclusion of LGBT people in the Anglican Communion.[16] In early 2023, the church once again refused to allow its clergy to bless same-sex unions, but directed the synod to develop "guidelines for providing pastoral ministry to those in same-sex relationships".[17] In May 2024, Archbishop Makgoba released a document recommending prayers for same-sex couples,[18] which the synod rejected in September.[19]

In 2020, the Methodist Church of Southern Africa voted to allow members, including ordained clergy, to enter into same-sex unions, while retaining the denomination's teaching that marriage is a union "between a man and a woman".[20][21]

Public opinion

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No opinion polls have gauged public support for same-sex marriage in Lesotho. However, same-sex marriage being legal in South Africa, which exercises social, political and cultural influence on Lesotho, awareness of same-sex relationships has "increased".[22]

See also

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References

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  1. ^ Spurlin, William J. (2014). "Queering Translation". In Bermann, Sandra; Porter, Catherine (eds.). A Companion to Translation Studies. Wiley Blackwell. ISBN 9781118616154.
  2. ^ Sullivan, Jason (17 June 2016). "Eras in Education "Mummy-Baby" Relationships in 1950s Lesotho: Learning About Loving". The Voice Magazine. 24. Retrieved 22 June 2016.
  3. ^ Ferreira, Alberto José Viralhadas (July 2012). "'The Fate of Flesh': Post-Humanist Views of the Body and Gende" (PDF). Inter-disciplinary.net. Archived from the original (PDF) on 13 August 2016. Retrieved 22 June 2016.
  4. ^ Spurlin, William J. (2006). Imperialism Within the Margins: Queer Representation and the Politics of Culture in Southern Africa. Palgrave Macmillan. ISBN 9781403983664.
  5. ^ Kendall, K. Limakatso (1998b). "'When a Woman Loves a Woman' in Lesotho: Love, Sex, and the (Western) Construction of Homophobia" (PDF). In Murray, Stephen O.; Roscoe, Will (eds.). Boy-wives and Female Husbands: Studies of African Homosexualities. Palgrave. pp. 223–242. ISBN 0312238290.
  6. ^ Epprecht, Marc (June 2002). "Male-Male Sexuality in Lesotho: Two Conservations". The Journal of Men's Studies. 10 (3).
  7. ^ Chaka-Makhooane, Lisebo. Molao oa lenyalo Lesotho. Global Fund.
  8. ^ "Marriage Act 1974" (PDF). data.unicef.org. Retrieved 5 November 2023.
  9. ^ "Legal Capacity of Married Persons Act 2006" (PDF). Organisation of South African Law Libraries. Retrieved 5 November 2023.
  10. ^ "House Approves Resolution on Rights of Married Women in Lesotho". Women's Congressional Policy Institute. 16 July 2023.
  11. ^ "Call for gay marriage to be legalized in Lesotho". Public Eye. Maseru. 2019.
  12. ^ "Lesotho: Chief Justice Sakoane Sakoane calls for the "cultivation of an LGBTIQ sensitive culture" in Lesotho". International Commission of Jurists. 18 October 2022.
  13. ^ "Constitution of Lesotho". Constitute Project. Retrieved 6 November 2023.
  14. ^ "More ructions in Anglican church over same-sex marriage". Iol.co.za. 16 September 2017. Archived from the original on 11 April 2019. Retrieved 11 April 2019.
  15. ^ "All Are God's Children: On Including Gays and Lesbians in the Church and Society". HuffPost. 11 August 2011. Archived from the original on 11 April 2019. Retrieved 11 April 2019.
  16. ^ Paulsen, David (2022-08-03). "Bishops who support full LGBTQ+ inclusion release statement from Lambeth Conference". Episcopal News Service. Retrieved 2022-08-28.
  17. ^ "Bishops in Southern Africa agree to prayers but not blessings for same-sex couples". Church Times. 6 March 2023.
  18. ^ LeBlanc, Douglas; Michael, Mark (9 May 2024). "Eclectic Prayers for Same-Sex South African Couples". The Living Church.
  19. ^ Ahrends, Chris (1 October 2024). "Love over rules — it's time for disobedience in the Anglican Church of Southern Africa". Daily Maverick.
  20. ^ "SA Methodist Church won't 'prevent' members entering into same-sex unions". MambaOnline. 2020-10-08. Retrieved 2021-07-16.
  21. ^ "Methodist Church of SA 'clarifies' position on gay marriage". gatewaynews.co.za. 2020-10-09. Retrieved 2021-07-16.
  22. ^ "An analysis of spaces for LGBTI activism in Lesotho" (PDF). The Other Foundation. Johannesburg. 2017.
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