The recent Supreme Court ruling affirming the right of any female with ‘abnormal’ sexual organ to change their status has been generating mixed reactions. ELEOJO IDACHABA in this report examines the issue.
No one saw it coming, but like a thunderbolt, it landed with a bang attracting both commendations and condemnations from various segments of the society.
This was the recent Supreme Court pronouncement that affirmed the right of a certain 36-year-old Isioma Adeyemi to change her status of being a woman to man on account of her ‘abnormal’ sex organ which, according to her, has denied her a happy marriage. As it is, it has become a law in Nigeria that it is the right of any female to change their sexual status if the possessor is no longer comfortable with it.
Making the pronouncement on October 29, 2019, the apex court ruled that women with clitorises that are pretty longer than 7.5 centimetres (3 inches) long can now legally be considered as men; therefore, to be accorded the full right of a male gender.
The pronouncement delivered by a five-member panel of the apex court presided over by Justice Mary Odili ended in favour of Adeyemi’s seven-year battle to be legally recognised as a man after having been married once as a wife to a biological male, but said the husband repudiated her on account of her long clitoris.
According to her, her clitoris is longer than her erstwhile husband’s penis.
While celebrating the victory, she said, “This is the greatest day of my life! My first husband repudiated me because my clitoris was bigger than his penis, now I finally get some kind of justice.”
According to the court, her request was granted because it was perfectly sound and legitimate.
Blueprint Weekend could not ascertain the medical ground supporting the court’s decision nor the amount of consultations and presentations that led to the pronouncement; however, it has received knocks and kudos from various segments of the society.
By that ruling, report indicates that Nigeria becomes the second country in the world, beside Uganda, to offer women with long clitorises the option of being legally considered as men. The decision went into effect in Uganda in 2011 and since then, as many as 11 women have legally changed their status to men.
It is a decision considered by some feminists and gender activists as a landmark ruling entitling women in similar situations to apply for similar legal recognition as male. It is also being viewed positively by members of the global LGBTQ community that Nigeria may be throwing away the orthodox understanding of ‘male’ and ‘female’ statuses which has traditionally been anchored on biology and binary sex designations.
According to experts, there may be over 600 other Nigerian women with similarly long clitorises who theoretically qualify for legal recognition as male going by the ruling. Some of them are believed to be already married, but the implication of the ruling for their marital status in light of the absolute legal prohibition of same sex marriage law in Nigeria is yet to be considered.
There, however, appears to be a conflict between this recent apex court ruling and the existing same sex law that is still in force. For instance, in the southern part of the country where the Criminal Code applies, Section 214 of the Code stipulates the maximum punishment for same-sex marriages to be 14 years in prison. The same punishment is also prescribed in Section 284 of the Penal Code which applies in Northern Nigeria. Some states in the northern part of Nigeria where Penal Code applies have additionally adopted Sharia law system with addition punishment of death by stoning. States like Lagos have also enacted laws that expressly outlaw expression of amorous behaviour by persons of the same gender as defined biologically.
Whether having naturally occurring long clitoris constitutes an exception under those laws are considerations which the court judgement was silent about.
This court pronouncement, according to analysts, certainly opens the door to the question of whether the court would equally be amenable to considering a biological male as a female if the male person can show proof of some functional similarity between his genital situation and any part of the female genitalia.
According to Barrister Geraldine Obinwanne, a gender activist, “By this ruling, the Supreme Court has introduced into the existing body of laws a further test of what it means to be male or female so as to include persons with clitoris 7.5cm long.
“Even though it is a decision that seems to have passed under the radar of the religious communities, the decision appears to be one of the most significant in the country’s history.
People are born with different birth variations – Njemanze
In applauding the ruling, a film maker and feminist, Dorothy Njemanze, said it is victory for feminism in the country. She said, “I have been doing a lot of works around people who have been identified as inter-sex and I would like to point out that there are up to 40 variations of inter-sex situation or manifestation in the land. Now, it is possible for some people to at the point of birth, having looked at a child and believes that such a child has feminine features but as the child progresses in life into teenagehood, she discovers that she has masculine features.
“So, at that point, is it fair to force someone like that that possibly has no womb or is unable to see her monthly period to live with a gender she cannot relate with. This is because they cannot find a partner that can be with them considering their own realities and whatever it is. At the end of the day, we don’t know how people are born and the different variations surrounding their birth. Again, no one knows what people are passing through, but as they grow older, different conditions begin to manifest and it is for them to take the best decision in line with their interest.”
She further said, “There are stories about people with pretty longer clitoris who demand a change of their status. I have personally seen clitoris bigger than penis. It’s a reality. At the end of the day, it is with the bearer whose comfortability is sacrosanct here. It’s about what the bearer feels more comfortable identifying with. We have had so many people who because they were unable to live with the realities of the gender administered upon them at birth have taken their lives. So, I don’t think a law should deny anyone the right to function in the best way someone can. I have met people who began menstruating, but along the line, the condition ceased and if you test their blood, the realities are there. Until those who make our laws face these realities, we would keep on trying to look into things that are beyond us.
“For me, it is right for any female gender to adopt a status she wants in line with what people refer to as abnormal sex organs. Remember that we had somebody in the Super Falcons at some point who played in that team but today lives as a man. We should realise that there are different things that can happen to different people’s body as we grow which the society must appreciate. That should not stop those individuals from functioning in the best way they can as long as they are alive. These people deserve our support in terms of the physical contact they need and not isolation. The medical and legal system in the society should identify with their realities because they are human beings and part of the society. At every point in our life, as people discover certain gender tendencies in their body, they should be given option to determine what they want and which one they function better in line with their health and mental physiology.”
No contradictions – Constitutional lawyer
According to Barrister Kingdom Nnamdi Okere, the executive director of Kingdom Human rights Foundation, there is no point of conflict between the ruling and the same sex law. He said, “The legal implication of the recent apex court ruling affirming the rights of any female gender to change their sexual status on account of any abnormal sexual organ is first as a lawyer, the ruling remains binding until set aside by the same court. Being the final court in the land does not make them infallible. The ruling may be wrong and against an existing law, but provided there is Supreme Court pronouncement, it changes the position of the law until set aside by the same apex court.
As a student of constitutional jurisprudence, I had once defined laws in our law books as incoherent and developing or evolving laws until they are given judicial interpretation. It is only when laws are given judicial interpretation that its beauty or defect is exposed. But like the one of a lady who went to the court on account of her prolong clitoris, I don’t think that means the law against same sex marriage has been nullified by the ruling. Every case in court has its own fact in issue, so you cannot generalise facts unless they are similar. If in the future there is a similar fact like the case you referred, then the ratio decidendi of this case would apply. Otherwise the law against same sex marriage stands and has not been nullified by the ruling you referred to.
Ruling can be set aside – NBA scribe
In his own view, Barrister Abdullahi Awwal Muhammad, the NBA secretary Gwagwalada said such pronouncements may not see the light of the day at the appropriate chamber. He said, “The religious positions which plays major role in our polity apart; legally it’s contradictory to natural justice and shall be defeated by strong argument when it becomes a matter of public discourse.”
Better than circumcision – Report
In many local communities in the country, there had been stories of female circumcision of clitoris as a check against promiscuity, a development that has been widely condemned as an assault on the sexual physiology of a girl-child for certain reasons. This is why, in the views of analysts, this ruling by the apex court is in the best interest of the society.
According to Frontiers in Pediatrics, a medical journal, “The primary concern in performing surgeries that address clitoral enlargement is that the procedure may reduce innervations to the clitoris. To this point, it is important to note that when compared to controls, sexually mature females who have undergone surgery in childhood frequently report reduced sensation and decreased ability to achieve orgasm.”
As it is presently, under the laws of Nigeria, it is only the National Assembly that can over-rule the Supreme Court or clarify the limits of the present ruling except the same court over-rules itself or takes the steps to outline the limits the present ruling.
According to experts, over 600 other Nigerian women have sufficiently big clitorises to apply for a change to their legal status. Nigeria is only the second country in the world to offer women with large clitorises the option of being legally considered as men.
