Government has lost a case in which it was taken to court by a transgender man after the Registrar of National Registration refused to change the gender marker in his national identity card (Omang).
The applicant presented psychological and medical evidence in court to the effect that his innate gender identity is and has always been male and that the failure of the state to recognise his gender identity had caused him significant trauma.
The applicant further submitted that his identity document should reflect his gender identity which only became apparent after his birth. The applicant argued that the National Registration Act allows the Registrar to change any particulars of a registered person and to issue that person a new identity card if there has been a material change to their circumstances.
Delivering his judgement on 29th September 2017, Lobatse High Court judge Justice Nthomiwa held that the refusal to change the applicant’s gender marker was unreasonable and violated his rights to dignity, privacy, freedom of expression, equal protection of the law, freedom from discrimination and freedom from inhumane and degrading treatment.
The court further ordered government to change the gender marker on the applicant’s identity document (Omang) from ‘Female’ to ‘Male’ to protect his dignity and well-being.
The case is a big blow for government and may open a can of worms as many transgender people are likely to come out demanding the same right. Currently government is inundated with similar requests, most of which have been unsuccessful. It is not clear whether the government will change their position on the issue.
The applicant, whose names were protected by the court, was represented by Tshiamo Rantao and Lesego Nchunga and supported by the Southern Africa Litigation Centre and Open Society Initiative of Southern Africa.
The applicant expressed relief after the victory and urged more people who find themselves in similar positions to persist and defend their rights.
His lawyer, Rantao, told The Botswana Gazette that “The ruling should going forward assist or guide the government functionaries to consider that which the court has advised on”.
Commenting on the matter, Tashwill Esterhuizen, LGBT and Sex Worker Rights Programme Lawyer at the Southern Africa Litigation Centre said the decision was a monumental victory for the rights of transgender persons in the region.
“The judge’s finding that the refusal to change a transgender person’s identity documents violates constitutional rights, goes a long way in improving the lives of transgender persons”, he said.
Ian Southey-Swartz, LGBTI Programme Manager at the Open Society Initiative of Southern Africa who were supporting the case said it has been a long, tedious journey.
“It has been a difficult journey but we are elated with the outcome. The impact of this case should not be underestimated. If properly implemented, it has the potential to positively change the lives of transgender persons” he said.
This is another landmark victory for sexual minority groups who continue to drag government to court, challenging it to recognize their rights. The Government of Botswana like many African states has not been keen to deliver on the second-generation rights owing to cultural norms and an institutionalized conservatism.
In 2016, government lost another highly publicised case in which the Lesbians, Gay, and Bisexuals of Botswana (LEGABIBO) were challenging its decision to deny them the right to register their organisation. The High Court overturned government’s decision, saying government had acted unconstitutionally.
The High Court two months ago postponed a similar case in which a transgender woman, Tshepo Kgositau, was contesting government’s refusal to change the gender marker in her identity documents.It is highly likely that Justice Leatile Dambe will rely on Justice Nthomiwa’s judgement.