NIGERIA’S SUPREME COURT DECLARES A ONCE MARRIED WOMAN A MAN.

The Supreme Court of Nigeria, Abuja on Tuesday, 29th October, 20119 ruled that women with clitorises longer than 7.5 centimetres (3 inches) long can now legally be considered as men in Nigeria.

The decision which was unanimously delivered by a five-member panel of the Supreme Court presided over by Justice Mary Odili ended, favourably, 36 year-old Isioma Adeyemi’s 7 year battle to be legally recognised as a man  – after having been married once as a wife to a biological male. Adeyemi’s clitoris was reportedly 8 inches long, which according to her was larger than her husband’s male homologue.

According to the Supreme Court, Isioma’s request was granted because it was “perfectly sound and legitimate”.

The medical or scientific ground supporting the Supreme Court’s decision is not at all clear: neither is the quality of amicus curia briefs, expert consultation and presentations that led down to the momentous decision available as at the time of filing this report.

The clitoris is a female sex organ present in mammals, ostriches and a limited number of other animals. In human babies, both the male penis and the clitoris develop from the same mass of embryonic cells. However, unlike the wild spotted hyena whose clitoris serve both reproductive and excretory functions (during urination) like the male homologue (penis) of humans, the adult human’s female clitoris is indeed, considered as the only organ in the human body which exist for sexual pleasure only: a fact that perhaps makes it all the more intriguing why Nigeria’s Supreme Court would consider it the equivalent of its male homologue.

By that ruling, Nigeria becomes the second country in the world, beside Uganda (another African country), to offer women with long clitorises the option of being legally considered as men. Uganda’s groundbreaking measure went into effect 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 as reports show they deem it an encouraging signal that Nigeria may be opening up and away from orthodox understanding of male and female, legally, 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 clitoris who theoretically qualify for legal recognition as male going by the Supreme Court ruling. Some of them are believed to be already married and the implication of the ruling for their marital status – in light of the absolute legal prohibition of same-same marriage in Nigeria.

In States in the southern part of Nigeria where the Criminal Code applies, Section 214 of the Criminal Code stipulates the maximum punishment for Same-Sex marriages to be 14 years imprisonment. 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 under which the maximum punishment for of death by stoning is prescribed. Some States down States, like Lagos State have also enacted laws expressly outlawing public expression of amorous behaviour by persons of the same gender, defined biologically.

Whether having naturally occurring long clitoris constitutes an exception under  those laws are considerations which the Supreme Court panels lent no light in aid of.

So, while in western countries legal re-assignment of gender identity has hitch-hiked on the wheels of judicial or legislative ‘recognition’ of same-sex rights and are often based on mental or psychological constructs, subjectively calibrated, the Supreme Court of Nigeria seems to have embraced a different approach where a preferred sex can be afforded a person who can demonstrate physically that his/her sexual organ is so physically peculiar as not to fit into traditional description(s). How many categories of physical conditions that the Court is willing to accommodate is of course a matter that would only be revealed by the passage of time – except a legislative intervention is used to restrict, over-rule or clarify the application of the legal rule.

The consideration certainly opens the door to another one in the reverse direction: whether the Courts, as a question of fact, would be amenable to considering a biological male as a female if the male person can show some functional similarity between his genital situation and any part of the female genitalia.

At least, this much is clear, by this ruling, the Nigerian Supreme Court has introduced into the existing body of laws – north and south of Nigeria – a further test of what it means to be male or female so as to include persons with clitoris 7.5cm long. What goodness or mischief the decision can be put to and how quickly remains to be seen.

Even though it is a decision that seems to have passed under the radar of the otherwise vigilant religious community, the decision appears to be one of the most significant in the country’s history. More importantly, it is an indication of the complete take-over of what used to be a conservative bench by seemingly neo-liberal judges led by Justice Mary Odili.

Under the laws of Nigeria, it is only the National Assembly of Nigeria made up of the Senate and House of Assembly that can over-rule the Supreme Court or clarify the limits of the present ruling – except the Supreme Court over-rules itself or takes the steps to outline the limits the present ruling.  

[Omotolu Oyewole and Sam Eleanya contributed to this report]