KGOSITAU v ATTORNEY GENERAL AND REGISTRAR OF NATIONAL REGISTRATION

BACKGROUND

On 4 August 2017 the Botswana High Court (Gaborone) will hear an application challenging the refusal of the Registrar of National Registration to change the gender marker on the identity document of a transgender woman. The case will be heard before Judge Dambe. The applicant, Tshepo Ricki Kgositau, is represented by Lesego Nchunga of Nchunga & Associates, with the support of the Southern Africa Litigation Centre.

‘Gender identity’ refers to each person’s deeply felt internal and individual experience of gender, which may or may not correspond with the sex assigned at birth, including the personal sense of the body (which may involve, if freely chosen, modification of bodily appearance or function by medical, surgical or other means) and other expressions of gender, including dress, speech and mannerisms. This is different from ‘sexual orientation’ which refers to each person’s capacity for profound emotional, affectional and sexual attraction to, and intimate and sexual relations with, individuals of a different gender or the same gender or more than one gender.

Transgender’ refers to an individual whose gender identity does not match their birth assigned gender. This consequently means that a transgender person’s legal identification documents misrepresent the gender identity and gender expression of the individual since they reflect the biological sex assigned to them at birth – regardless of whether or not this is the felt/innate gender identity of the individual.

THE FACTS

The applicant is a transgender woman. Though she was assigned a male sex at birth, since a very early age she has identified as a woman and subsequently was socialised as one by her family.

The applicant requests that the High Court orders the respondents to change the gender marker on her identity document (Omang) from ‘male’ to ‘female’. This is a simple request which is vital to the protection of the applicant’s human dignity, well-being and security.

The application includes supporting evidence on affidavit from her mother, siblings and relatives, as well as psychological and medical evidence to the effect that her innate gender identity is and has since an early age always been female and that her family has embraced her and loved her as a woman. The applicant submits that sex consists of more than chromosomal or biological factors and that her identity document should reflect and give precedence to her gender identity, which only became apparent after her birth.

The applicant submits that the incorrect reflection of her gender as ‘male’ instead of ‘female’ on her identity document is causing her considerable and ongoing emotional distress while increasing her vulnerability to abuse and violence from state and non-state actors.

LEGAL ISSUES

The applicant submits that the refusal to change her gender marker violated her rights to dignity, privacy, freedom of expression, equal protection of the law, freedom from discrimination and freedom from inhumane and degrading treatment.

The High Court has to consider:

  1. Whether the respondents’ refusal to issue the applicant with a new identity document that correctly reflects her gender identity as ‘female’ constitutes a violation of her constitutional rights; and
  2. Whether the respondents’ justification for the limitation of the applicant’s constitutional rights is reasonable and justifiable.

The applicant argues that the National Registration Act provides the framework by which the State can change the Omang of the applicant to reflect her gender identity and uphold her constitutional rights. The Act allows the Registrar to change the particulars of a registered person in circumstances where these particulars materially affects the person’s registration. The applicant argues that the State has a duty to fully realise the constitutional protection of the applicant’s dignity and having an identity document that correctly reflects her gender identity is fundamental to realising the dignity and security of the applicant.

 

IMPORTANCE OF THE CASE

In March 2016, the Botswana Court of Appeal gave an important judgment (Attorney General v Rammoge) which emphasised the human rights apply to every person: “Members of the gay, lesbian and transgender community, although no doubt a small minority, and unacceptable to some on religious or other grounds, form part of the rich diversity of any nation and are fully entitled in Botswana, as in any other progressive state, to the constitutional protection of their dignity”.

The Kgositau case builds on this judgment and seeks to ensure that the rights of transgender persons are recognised in practice as well.  Ricki Kgositau is the Executive Director of Gender DynamiX, which is the 1st transgender focused organisation on the continent based in Cape Town – South Africa. Gender DynamiX is a regional organisation that advocates for the rights of trans diverse and gender diverse persons in Southern Africa which challenges laws and policies to be more trans sensitive and inclusive in various Southern African countries. Gender DynamiX is a part of the Steering Committee of the Southern Africa Trans Forum as the Treasurer; which is an alliance of more than 17 trans focused and trans led organisations from over 12 countries in Southern Africa (www.genderdynamix.org.za). Ricki Kgositau is a graduate of International Relations with a specialty in Diplomacy and International Human Rights Law and has dedicated her life to raise awareness and visibility of trans diverse persons. This she does through research, human rights documentation, visibility raising, education and training as well as sensitisation of various stakeholders which has even seen her selected as one of the top young leaders in Africa under the Mandela-Washington Fellowship in 2016 for which she completed her residency with the University of California-Berkeley. This case will go a long way in ensuring access to justice for transgender persons in Botswana while setting case law that can contribute to effecting such change in other countries.

For more information contact:

Lesego Nchunga 
Email: moc.liamgnull@agnuhcnogeselssim

Ricki Kgositau

Email: moc.liamgnull@uatisogkrt/ az.gro.ximanydrednegnull@rotcerid