Botswana | Court victory for transgender man a boost for LGBTI rights

In a landmark ruling, a Botswana court has ordered state officials to legally recognise the gender identity of a transgender man.

On Friday, Justice Nthomiwa of the Lobatse High Court handed down judgment in a case that challenged the refusal of the Registrar of National Registration to change the gender marker on the man’s identity document.

The court found that the refusal was unreasonable and violated the man’s rights to dignity, privacy, freedom of expression, equal protection of the law, freedom from discrimination and freedom from inhumane and degrading treatment.

Justice Nthomiwa ordered the registrar to change the gender marker on the applicant’s identity document from ‘female’ to ‘male’ to protect his dignity and well-being. The court previously issued an order that the applicant’s names and personal details remain confidential.

Though he was assigned a female sex at birth, the applicant self-identifies as a man. He presented psychological and medical evidence to the effect that his innate gender identity is and has always been male and that the failure of the state to formally recognise his gender identity has caused him significant trauma.

“This is an immense relief,” said the applicant. “It has been difficult waiting for the matter to take its course through the courts, and I am hopeful that other persons who find themselves in a similar situation will be dealt with in a more respectful manner when they apply for new identity cards.”

The applicant was represented by Tshiamo Rantao and Lesego Nchunga and supported by the Southern Africa Litigation Centre and Open Society Initiative of Southern Africa.

“This is 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”, commented Tashwill Esterhuizen, LGBT and Sex Worker Rights Programme Lawyer at the Southern Africa Litigation Centre.

“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” added Ian Southey-Swartz, LGBTI Programme Manager at the Open Society Initiative of Southern Africa.

It’s hoped that Friday’s court ruling will have a positive impact on a similar pending case. A Botswana-born transgender woman and activist, Tshepo Ricki Kgositau, is set to return to court in December in a bid to also have the gender marker on her identity document changed.

In March last year, Botswana’s LGBTI rights group, Legabibo, won a historic court case that saw the government being ordered to officially acknowledge and register the organisation.

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