The Comparison Between Two Jurisdictions In Relation To The Same-sex Relationships

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This essay serves as a comparative platform between two jurisdictions in relation to the topic “same-sex relationships”. According to Oxford Learners Dictionary same-sex relationships, often referred to as homosexuality, is the condition of being sexually attracted to people of the same sex. These people are categorized under the LGBTQI community also referred to as a gay community (comprising of lesbians, gays, transgender, queer, and intersexual), who are united by a common culture and social movements. The aim of this community is to celebrate pride, diversity, individuality, and sexuality. 

In this essay, the comparison will be done between Botswana and the United States of America, Massachusetts state, which is the foreign jurisdiction. Our main hypothesis is

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“Same-sex relationships are legal in Massachusetts than in Botswana”

Comparison is to be done by outlining a subdivision of mini hypotheses centered around themes in which we shall state the similarities and differences of both these jurisdictions using these themes as an aid. The themes, which are in relation to same-sex relationships, are:

  • History
  • Statutory laws
  • Cases that decriminalize same-sex relationships
  • Employment
  • Adoption
  • Religion
  • Marriage
  • The legal families to which these jurisdictions belong.

Botswana belongs to a mixed legal family entailing of Customary law, Roman-Dutch law, and English Common law. The mixed aspect of Botswana’s legal system is marked by the infusion of its received foreign legal system -through colonization by Britain and its pre-colonial customary law system. 

Massachusetts on the other hand belongs to an English common law legal family. At first, it was inhabited by a variety of Indian tribes and used these Indian tribe laws to govern its society, but this became replaced by English common law when it became colonized by the English settlers in the early 17th century.

These legal families have a similar aspect in their background as they were both colonized by the British who had a substantial effect on their legal system as it still has an influence on them till this day. Although Massachusetts, after it became colonized by Britain, adopted the English common law legal system entirely whilst Botswana retained its own customary laws within its jurisdiction.

History

Firstly, it can be articulated that both these jurisdictions at some point accepted same-sex relationships. During the 18th century, the Khoikhoi people recognized the term koetsire which refers to a man who is sexually receptive to another man as well as soregus which means same-sex masturbation among friends. Anal intercourse and sexual relations between women also occurred but rarely. The San people did not think negatively about Homosexuality, they accepted it. To this day there are rock paintings depicting anal intercourse between men. However, this openness and indifference towards homosexuality changed after Botswana became a British protectorate in the 19th century and began enforcing Victorian-era laws and social policies.**This was because the British influenced the Batswana into thinking that homosexuality was seen as contradictory to morals and decency as it was outside the Christian norms introduced to them by David Livingstone**. This led to the Victorian Era laws which comprised of a 1965 Penal code that punishes same-sex relationships with up to 7 years in imprisonment

Massachusetts on the other hand first started off as viewing homosexuality in a bad manner. There were cases such as one that took place in Essex Country, Massachusetts, where Elizabeth Johnson was fined and whipped for “unseemly practices with another maid attempting to do that which man and women can do”. However, after protests that took place in 1907 onwards, where gay people advocated for a change in society’s way of thinking regarding them, Massachusetts became the most advanced U.S state in regards to LGBT rights legislation, as it became legalized in 1974.

Constitution

Section 3 of Botswana’s constitution talks about the fundamental rights and freedoms of an individual. Section 3 b confers upon a person the right to freedom of conscience, of expression, and of assembly and association. Section 15 of the constitution, before its amendment, did not include sex as a list of those things that are discriminatory factors, however, after the case of Attorney General v Unity Dow, it was held that sex could be included as this list wasn’t exhaustive.

The Massachusetts constitution Part one, articles 1, 6, 7, 10 were the violated provisions of Massachusetts. Article 10 of the Massachusetts Constitution

Adoption and Parenting

In 1985 in response to public controversy about same-sex couple that was acting as foster parents, Massachusetts issued a regulation to prevent them from being foster parents. State rescinded these regulations in April 1990 as part of a suit by gay and lesbian Advocates and offenders(GLAD) and the American Civil Liberties Union(ACLU) following a campaign by an ad hoc group formed around the issue of Foster Equality.

The state allowed second-parent adoption by the parent of the sex as the existing parent since a court decision in In Re Adoption of Tammy 1993. In July 1999 the same court awarded visitation rights to each of the two (2) mothers after separation.

In 2004 following the legislation of same-sex marriage in Massachusetts, Governor Mitt Romney Prevented the state’s Registry of vital records from revising its birth certificate forms to allow for options other than one mother and one father. Forms changed when governor Deval Patrick took office in 2007.

In the Della Corte v Ramirez 81 Mass. App. Ct 906. (2002) case it was held that a child born of same-sex marriage is the legitimate child of both people. As a result, it follows that when there is a marriage between a same-sex couple, the is a need for the second parent adoption too, at the very least to confer legal parentage on the non-biological parent is eliminating when the child is born of the marriage.

In the Hunter v Rose 463 Mass 488 (2012) case it was held that the court found that, a registered same-sex domestic partnership entered into in California was the equivalent of marriage in the commonwealth.

In Botswana, same-sex couples cannot adopt as they haven’t been allowed to do so, as their relationships have not been recognized yet by the country and its people at large. Even though same-sex relationships were decriminalized in June 2019. Section 3 of the Adoption Act 1952 states all the qualifications for the adoption of children. Sub section 3 provides that there must be the presence of a husband and his wife jointly for a child to be adopted.

This act doesn’t confer the right upon people indulging in same-sex relationships to adopt hence by principle, it can be said that they were excluded intentionally.

Marriage.

Same-sex relationships have been legal since1974, state law bans discrimination on the basis of sexual orientation and gender identity in employment, housing, public accommodations, credit, and union practices. In November 2018, it became the first state in the country to support transgender protections through popular vote. In addition, same-sex couples are allowed to adopt, and transgender people may change their legal gender without undergoing sex reassignment surgery. In April 2019, Massachusetts became the 16th US state to ban conversion therapy on LGBT minors.

Massachusetts is home to a vibrant and visible LGBT culture. Boston, the state capital, has been ranked one of the most LGBT-friendly cities in the United States noted for its LGBT dating scene, events, nightlife, clubs, and bars. Several towns located at the tip of Cape Cod are also famous internationally for their high LGBT acceptance and visibility, particularly Provincetown. Northampton, on the other hand, is the town with the most lesbian couples per capita in the entire United States.

In 2004, the state of Massachusetts became the first US state to grant marriage licenses to same-sex couples after the Goodridge v Department of Public Health 440 Mass, 309, 798 N.E 2d 941 (2009) where it was held that “Barring a person from the benefits and obligations of civil marriage solely because that person wishes to marry someone of the same sex violates the Massachusetts constitution”.

On the other hand, due to Batswana’s norms and values, same-sex relationships still haven’t been accepted. According to a 2016 Afro-barometer opinion poll, it was found that 43% of Batswana would welcome or would not be bothered by having a homosexual neighbor whilst 57% of Batswana are still short-minded about same-sex couples as a whole. Studies have proven that the youth are accepting of such relations that the elderly. Difficulty to accept is commonly among eldest as they grew patrilineal societies and it was always between opposite-sex relationships making it difficult to depart from their norms and believes about such.

Employment.

It can be said that both Jurisdictions aren’t discriminatory to people who indulge in same-sex relationships in terms of employment. This is evidenced in Massachuttes under the Massachusetts Fair Employment Practices Act (FEPA) which prohibits both sexual orientation and gender inequality discrimination. ). In the year 1989, Massachusetts became the second state in the country to ban employers in both the private and public sector from discriminating on the grounds of sexual orientation. In 2011 pursuant to House bill no. 1577, the Massachusetts legislature amended FEPA to prohibit employment discrimination on the basis of gender identity as well.

In Botswana, section 23(d) of the Employment act of 1982 restricts termination of contract employment on the basis of sexual orientation of which it states that no contract shall be terminated on the basis of the employer’s race, tribe, place of origin, national extraction, social origin, marital status, political opinion, sex, color, and creed.

However, only one of these jurisdictions upholds this policy. In Massachuttes, after the landmark case of Goodridge, employment discrimination against gay employees has been institutionalized at the highest levels of government. Compelling but suggestive evidence has risen supporting the idea that since same-sex marriages have been legalized it has led to lower discrimination.

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