Victory for Gender Identity in Botswana

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In a legal first for Botswana, the country’s High Court has ruled that a transgender man should be allowed to hold official documents that reflect his gender identity. The judgment is a huge victory for transgender people in Botswana, who face considerable challenges when their gender identity is not reflected in official papers.

The applicant who brought the case was assigned female at birth, but self-identifies as a man. The court found that by refusing to change the man’s gender on his identity document, Botswana’s Registrar of National Registration had violated several of his basic human rights.

For the plaintiff, this marks a personal milestone. As he told me: “I am overjoyed and humbled at the same time, to have finally found the legal relief I have sought for the past seven years of my life.”

But the case also has broader resonance, which is why the Southern African Litigation Centre (SALC) supported it. SALC lawyer, Tashwill Esterhuizen, described the judgment as a “monumental victory” for the rights of transgender people in the region.

This is not the first time the country’s vulnerable lesbian, gay, bisexual, and transgender (LGBT) community have had their fundamental rights upheld by the courts. In another progressive judgment last year, the Botswana Court of Appeal upheld the right of LEGABIBO, a lesbian, gay, and bisexual advocacy group, to officially register as a nonprofit organization after it was initially refused by the Registrar’s director and the country’s labour and home affairs minister, who tried to argue that the group was operating for an “unlawful purpose”.

Although some consensual same-sex acts are criminalized in Botswana, where “carnal knowledge against the order of nature” can land you up to seven years in prison, the judgment in the LEGABIBO case said that laws prohibiting some sexual acts do not criminalize homosexuality per se, and that sexual minorities have the same rights as anyone else. Botswana also has a progressive labor law that protects employees from discrimination due to sexual orientation.

This recent High Court judgment affirms trans people’s right to have the gender they identify with legally recognized. It also shows the value of independent courts in Botswana acting to uphold the rights of minority groups.