Transgenderization And The Law: The Nigerian Reality

By Adeniyi Israel Adekunle

About 27 countries in the world have accorded legal protection and recognition to the rights of lesbian, gay, bisexual and transgender (LGBT) people.[1] In Africa, reactions to the LGBT rights have remained conservative and negative.  Many African countries still outlaw all forms of LGBT rights. Studies have shown that nine in every ten people in Nigeria are averse to gay sex or relationship.[2]

The Nigerian credenda about this set of ostracized people was utterly entrenched and reaffirmed by the enactment of the Same Sex Marriage (Prohibition) Act (hereinafter referred to as SSMPA) in 2014. By virtue of the SSMPA, every manifestation of (sexual) associations of same sex persons in Nigeria is sanctioned with explicit orthoepy of illegality with punitive consequences. However, there seems to be a general misconception on the status of transgender people in Nigeria. Many a Nigerian erroneously nurtures the notion that transgender people are no different from the homosexuals.[3] Against this backdrop, topical questions have then arisen to be broached in this article.

Does the SSMA apply to transgender people in Nigeria? Do Transgender people have an identity within the purview of the Nigerian Law? What really is the legal status of transgender or intersex people in Nigeria? These questions boil down to answering the puzzle on transgenderization under the Nigerian law.

Conceptually, transgenderization is the state of being transgender. It is defined as the ‘act or process of making transgender’.[4] Transgender people are those whose gender identities or expressions differ from the sexes which they were born with. Transgender is a term used to defined people whose gender or sex does not match the ones they were assigned at birth.[5] All over the world, it is an undeniable truth that transgender people suffer discrimination, harassment, physical violence and unfair treatments.[6] The case is no different from the Nigerian case. Social stigma and ruthless treatments are meted on transgender people in Nigeria. A notorious exemplification is Miss Sahhara. Likewise, little is said about the identity of transgender people in Nigeria because they are regarded as ‘non-existent’ even though Bobrisky is a converse illustration that transgender people are indeed parts of the Nigerian reality.

The Purview of the Nigerian Law on Transgender People

As rightly posited in the previous paragraphs, SSMPA is the first legislation that comes to the mind of every Nigerian when issues of transgenderization are mentioned. Conversely, the SSMPA is the legislation outlawing homosexuality (be it club, association or organization) and imposing imprisonment terms of up to 14 years for people found guilty under the Act. Based on a microscopic perusal of the provisions of the SSMPA, the legal stance on transgender people in Nigeria is in vagueness. It can therefore be asserted that the SSMA does not apply to transgenderization in Nigeria.

The nearest sui generis provision that can be said to affect trans people is Section 405 of the Penal Code Act. By the provision of section 405(2)(e) of the Penal Code, a vagabond is defined as “any male person who dresses or is attired in the fashion of a woman in a public place…”. This provision has been reiterated in the Sharia Penal Code. Section 407 of the Code prescribes a punishment of two-year imprisonment or with fine.  Stricto sensu, this provision is faint and wispy on transgender status in Nigeria. Its only iota of application to transgender people is that transgender identities are cognizable through their dressings and appearance, thus rightly imputing transgender people as vagabonds. The shortcoming of this provision, however, is that it only applies to ‘male persons’.

Alas, with a forensic examination of the Nigerian juris corpus, there seems to be a lifeless silence on the legal status or stance of transgender people. Contrariwise, the Nigerian law more often than not comes in handy to rap the knuckles of transgender people when the same form sexual relationship with other people (whether transgender or not).  Put in another way, the erstwhile dead provisions of the law catch up with transgender people when they decide to engage in sexual relationship with others.

In the process of social transitioning, transgender people tend to relate with others just like every other human being. This is the very genesis of the application of the various penalties spelt by the law. Section 284 of the Penal Code states that:

“Whoever has carnal intercourse against the order of nature with a man, woman or an animal, shall be punished with imprisonment for a term of which may extend to fourteen years and shall also be liable to fine.”

The Shariah Penal Code provides that:

133. Whoever, being a woman, engages another woman in carnal intercourse through her sexual organ or by means of stimulation or sexual excitement of one another has committed the offence of lesbianism.
134. Whoever commits the offence of lesbianism shall be punished with caning which may extend to fifty lashes and in addition to be sentenced to a term of imprisonment which may extend to six months.

Ultimately, the SSMPA is the principal legislation on same sex relations in Nigeria. In its various provisions, the Act prohibits any form of marriage, relationship, organization, association or expression of same sex ideas or orientation, or sexual conduct between persons of same sex, while punishing same with an imprisonment term of up to 14 years.

Conclusion

A meticulous analysis of the foregoing laws navigates one to arrive at the viewpoint that there are no clear laws on transgenderization in Nigeria. By a community reading of the above cited laws, the status of transgender people in Nigeria is ordinarily not criminal, though not accorded any legal recognition or protection. Suffice it is to say that there are no punitive consequences for being a transgender person in Nigeria save that such person does not indulge in any form of amorous or sexual relationship or union with another person. Regrettably, the reality is that most transgender people engage in sexual relationships as a means to express their gender identities, thereby, bearing the brunt of the wrath of the law in this regard. As LGBT movement gradually permeates and gains acceptance in various jurisdictions of the world, the fate of the transgender in Nigeria remains uncertain despite strict religious and legal stances.

Adeniyi Israel Adekunle writes from the Department of Common Law, Faculty of Law, University of Ilorin. He can be reached via israeadeniyi178@gmail.com.

[1] Jacob Poushter and Nicholas Kent, ‘The Global Divide on Homosexuality Persists’ (Pew Research Center, 25 June 2020) https://www.pewresearch.org/global/2020/06/25/global-divide-on-homosexuality-persists/ accessed 11 December, 2021.

[2] Adaobi Tricia Nwaubani, ‘LGBT acceptance slowly grows in Nigeria, despite anti-gay laws’ (Reuters, 17 May, 2017) https://www.reuters.com/article/us-nigeria-lgbt-survey-idUSKCN18C2T8 accessed 11 December, 2021.

[3] Ibid

[4] Wiktionary, ‘Transgenderization’ (Wiktionary, 10 April, 2017) https://en.wiktionary.org/wiki/transgenderization#English accessed 11 December, 2021.

[5] Alina Bradford and Timothy Williamson, ‘What does transgender mean?’ (Livescience, 16 November, 2021) https://www.livescience.com/54949-transgender-definition.html accessed 11 December, 2021.

[6] Timinepre Cole, ‘I feel invisible: The challenges of being trans in Nigeria’ (Aljazeera, 1 November, 2021) https://www.aljazeera.com/features/2021/11/1/i-feel-invisible-the-challenges-of-being-trans-in-nigeria accessed 11 December, 2021.