A LEGAL AND JURISPRUDENTIAL ANALYSIS OF HOMOSEXUALITY AND SAME SEX MARRIAGES: SUPPORTING THE NIGERIAN POSITIION

A LEGAL AND JURISPRUDENTIAL ANALYSIS OF HOMOSEXUALITY AND SAME SEX MARRIAGES: SUPPORTING THE NIGERIAN POSITIION

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CHAPTER ONE

INTRODUCTION

1.1     DEFINITION OF HOMOSEXUALITY

          Homosexuality is romantic or sexual attraction or behavior between members of the same sex or gender.  As an orientation, homosexuality refers to “an enduring pattern of or disposition to experience sexual, affectionate, or romantic attractions” primarily or exclusively to people of the same sex; “it also refers to an individual’s sense of personal and social identity based on those attractions, behaviours expressing them, and membership in a community of others who share them.” [1]

          Homosexuality is one of the three main categories of sexual orientation, along with bisexuality and heterosexuality, within the heterosexual-homosexual continuum (with sexuality sometimes considered a fourth).  Scientific and medical understanding is that sexual orientation is not a choice, but rather a complex interplay of biological and environmental factors, especially with regard to early uterine environment.[2]  While there are those who still hold the view that homosexual activity is “unnatural” or “dysfunctional”[3] research has shown that homosexuality is an example of normal variation in human sexuality and is not in and of itself a source of negative psychological effects.  Prejudice and discrimination against homosexual and bisexual people, however, have been shown to cause psychological harm.[4]

          The most common terms for homosexual people are lesbian for females and gay for males, though gay is also used to refer generally to both homosexual males and females.  The number of people as gay or lesbian and the proportion of people who have same-sex sexual experiences – are difficult for researchers to estimate reliably for a variety of reasons.[5]  According to major studies, 2% to 10% of people have had some form of same-sex sexual contact within their lifetime.[6]  In a 2006 study, 20% of respondents anonymously reported some homosexual feelings, although only 2-3% identified themselves as homosexual.  Homosexual behavior is also observed in many non-human animal species.[7]

          Many gay and lesbian people are in committed same-sex relationships, though only recently have census forms and political conditions facilitated their visibility and enumeration.[8]  These relationships are equivalent to heterosexual relationships in essential psychological respects.[9]  Homosexual relationships and acts have been admired, as well as condemned, throughout recorded history, depending on the form they took and the culture in which they occurred.  Since the end of the 19th century, there has been a global movement towards increased visibility, recognition and legal rights for homosexual people, including the rights to marriage and civil unions, adoption and parenting, employment, military service, equal access to health care, and the introduction of anti-bullying legislation to protect LGBT minors.

          Societal attitudes towards same-sex relationships have varied over time and place, from expecting males to engage in same-sex relationships, to casual integration, through acceptance, to seeing the practice as a minor sin, repressing it through law enforcement and judicial mechanisms, and to proscribing it under penalty of death.

          In a detailed compilation of historical and ethnographic materials of Preindustrial Cultures, “strong disapproval of homosexuality was reported for 41% of 42 cultures; it was accepted or ignored by 21%, and 12% reported no such concept.  Of 70 ethnographies, 59% reported homosexuality absent or rare in frequency and 41% reported it present or not uncommon.”[10]

          In cultures influenced by Abrahamic religions, the law and the church established sodomy as a transgression against divine law or a crime against nature.  The condemnation of anal sex between males, however, predates Christian belief.  It was frequent in ancient Greece; “unnatural” can be traced back to Plato.[11]

          Many historical figures, including Socrates, Lord Byron, Edward II, and Hadrian,[12] have had terms such as gay or bisexual applied to them; some scholars, such as Michael Foucault, have regarded this as risking the anachronistic introduction of a contemporary construction of sexuality foreign to their times, though others challenge this.[13]

          Regarding homosexuality nature and historic expression there are two seemingly opposite positions.  These are represented by a constructionist and an essentialist approach.  In general social constructionism considers that there are “social constructions” resulting from the many characteristics of a particular social group, and not from some essential nature of the individual self.  On the other hand Essentialists defend the existence of real essences that define the individual’s expressions, and social learned aspects are only secondary.  David M. Halperin devotes a chapter”  homosexuality; a cultural construct of his work One Hundred Years of Homosexuality to this subject.[14] He says that the essentialism applied to sexual categories means that the terms like “gay” or “straight” refer to culturally not modifiable, essentially personal traits.  On the contrary, constructionists mean that these terms are the names of social processes.  Halperin leans towards this last position, as he considers that sexuality, including homosexuality, has been expressed in essentially different ways in different historic societies, as it is in present day ones.  He, nevertheless, cites Esteven Epstein[15] that compares the controversy between essentialists and constructionists to the general Nature versus Nurture debate.  As one of the main representatives of essentialists he cites John Boswel), and Michael Foucault as a prominent constructionist. 

          The American Psychological Association, American Psychiatric Association, and National Association of Social workers stated in 2006:

….currently, there is no scientific consensus about the specific factors that cause an individual to become heterosexual, homosexual, or bisexual – including possible biological, psychological, or social effects of the parents’ sexual orientation.  However, the available evidence indicates that the vast majority of lesbian and gay adults were raised by heterosexual parents and the vast majority of children raised by lesbian and gay parents eventually grow up to be heterosexual.[16]

          The Royal College of Psychiatrists stated in 2007:

…Despite almost a century of psychoanalytic and psychological speculation, there is no substantive evidence to support the suggestion that the nature of parenting or early childhood experiences play any role in the formation of a person’s fundamental heterosexual or homosexual orientation.  It would appear that sexual orientation is biological in nature, determined by a complex interplay of genetic factors and the early uterine environment.  Sexual orientation is therefore not a choice.[17]

          The American Academy of Pediatrics stated in Pediatrics in 2004:

…Sexual orientation probably is not determined by any one factor but by a combination of genetic, hormonal, and environmental influences.  In recent decades, biologically based theories have been favoured by experts.  Although there continues to be controversy and uncertainty as to the genesis of the variety of human sexual orientation, there is no scientific evidence that abnormal parenting, sexual abuse, or other adverse life events influence sexual orientation.  Current knowledge suggests that sexual orientation is usually established during early childhood.[18]

          The American Psychological Association states “there are probably many reasons for a person’s sexual orientation and the reasons may be different for different people”, and says most people’s sexual orientation is determined at an early age.[19]  Research into how sexual orientation in males may be determined by genetic or other prenatal factors plays a role in political and social debates about homosexuality, and also raises fears about genetic profiling and prenatal testing.[20]

          Professor Michael King states: “the conclusion reached by scientists who have investigated the origins and stability of sexual orientation is that it is a human characteristic that is formed early in life, and is resistant to change.  Scientific evidence on the origins of homosexuality is considered relevant to theological and social debate because it undermines suggestions that sexual orientation is a choice.”[21]

          Innate bisexuality (or predisposition to bisexuality) is a term introduced by Sigmud Freud, based on work by his associate Wilhelm Fliess, that expounds that all humans are born bisexual but through psychological development – which includes both external and internal factors-become monosexual, while the bisexuality remains in a latent state.

          The authors of a 2008 study stated “there is considerable evidence that human sexual orientation is genetically influenced, so it is not known how homosexuality, which tends to lower reproductive success, is maintained in the population at a relatively high frequency”.  They hypothesized that “while genes predisposing to homosexuality reduce homosexuals’ reproductive success, they may confer some advantage in heterosexuals who carry them”.  Their results suggested that “genes predisposing to homosexuality may confer a mating advantage in heterosexuals, which could help explain the evolution and maintenance of homosexuality in the population”.[22]  A 2009 study also suggested a significant increase in fecundity in the females related to the homosexual people from the maternal line (but not in those related from the paternal one).[23]

          Garcia-Falgueras and Swaab state in the abstract of their 2010 study, “The fetal brain develops during the intrauterine period in the male direction through a direct action of testosterone on the developing nerve cells, or in the female direction through the absence of this hormone surge.  In this way, our gender identity (the conviction of belonging to the male or female gender) and sexual orientation are programmed or organized into our brain structures when we are still in the womb.  There is no indication that social environment after birth has an effect on gender identity or sexual orientation.”[24]

          Most nations do not prohibit consensual sex between unrelated persons above the local age of consent.  Some jurisdictions further recognize identical rights.  Protections, and privileges for the family structures of same-sex couples, including marriage.  Some nations mandate that all individuals restrict themselves to heterosexual





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