One for one and one for all? Human rights and transgender access to legal gender recognition in Botswana
AbstractIn 2017 a surprising development took place in an African nation with no lesbian, gay, bisexual or transgender (LGBT) rights or protections to speak of. In two separate cases, one involving a transgender man and the other a transgender woman, the Botswana High Court ruled in favour of the two litigants. The rulings allowed each to have their gender markers on their identity documents adjusted. This was a historical first on the African continent. This paper explores how this came to pass. Providing a close reading of the Botswana cases I contend that, perhaps surprisingly, the law though crucial, seems to function as simply the final decision-making tool at the judges' disposal. Drawing on interviews undertaken with both litigants and their legal teams alongside available media including op-eds’ by members of the litigation team, I provide a comparative analysis of the two cases. I argue that each case followed a distinct strategy and that this may prove pertinent to future jurisprudence in the region. Beyond the much-derided framing of gender identity as a human right in Africa, in cases such as these it would seem that for transgender people, the heteronormative ways in which litigants are presented, along with their public in/visibility and perceived im/mobility can be critical to their outcomes.
Aiken, D. (2017) Identifying Injustice: Law and Policy on Sexual Orientation, Gender Identity and HIV in Southern Africa.
Attorney General v. Unity Dow (1992) 103 ILR 128
Banana v State, Supreme Court of Zimbabwe 2000 (4) LRC 621
Butler, J. (1988) Performative Acts and Gender Constitution: An Essay in Phenomenology and Feminist Theory. Theatre Journal. 40 (4), 519–531.
Camminga, B. (2019a) Transgender Refugees and the Imagined South Africa: Bodies over Borders and Borders over Bodies. New York, Palgrave Macmillan.
Camminga, B. (2019b) Shifting in the City: Being and Longing in Cape Town. In: Zethu Matebeni & B Camminga (eds.). Beyond the Mountain: Queer Life in Africa’s ‘Gay Capital’. Johannesburg, Unisa Press. pp. 60–70.
Camminga, B. (2017) Where’s your umbrella? Decolonialisation and transgender studies in South Africa. Postamble. 10 (1). Available at: http://postamble.org/portfolio/wheres-your-umbrella/, last accessed 3 August 2017
Chiduza, L. & Makiwane, P.N. (2016) Strengthening locus standi in human rights litigation in Zimbabwe: An analysis of the provisions in the new Zimbabwean Constitution. PER: Potchefstroomse Elektroniese Regsblad. 19 (1), 2–29.
Currah, P. & Mulqueen, T. (2011) Securitizing Gender: Identity, Biometrics, and Transgender Bodies at the Airport. Social Research.
Currah, P. & Mulqueen, T. (2011) Securitizing Gender: Identity, Biometrics, and Transgender Bodies at the Airport. Social Research. 78 (2), 557–582.
Employment (Amendment) Act 10 of 2010.
Esterhuizen, T. (2017) Op-Ed: Progressive Botswana court affirms that legal recognition of gender identity at core of human dignity | Daily Maverick. 21 November 2017. Daily Maverick. Available at: https://www.dailymaverick.co.za/article/2017-11-21-op-ed-progressive-botswana-court-affirms-that-legal-recognition-of-gender-identity-at-core-of-human-dignity, last accessed 23 November 2017.
Fombad, C. (2013) Botswana Introductory Notes. In: The Botswana Legal System. Pretoria, LexisNexis South Africa. pp. 1–39. Available at: http://www.icla.up.ac.za/images/country_reports/botswana_country_report.pdf, last accessed 11 October 2019.
Grant, K. & Meerkotter, A. (2018) “The law needs to change, we want to be free.” The impact of laws criminalising same-sex relationships in Botswana. United Nations Development Programme, Southern Africa Litigation Centre & Lesbians, Gays and Bisexuals of Botswana. Available at: https://www.southernafricalitigationcentre.org/wp-content/uploads/2018/05/Botswana-rights-booklet.pdf, last accessed 2 August 2019.
Igual, R. (2018) Activists condemn horror video beating of trans woman. 8 November 2018. MambaOnline - Gay South Africa online. Available at: http://www.mambaonline.com/2018/11/08/botswana-activists-condemn-horror-video-beating-of-trans-woman, last accessed 26 November 2018.
International Network of Civil Liberties Organizations (INCLO) (2017) Report on the Advancing Transgender Rights International Convening 1-3 February 2017 Cape Town.
Jjuuko, A. (2018) Beyond court victories: Using strategic litigation to stimulate social change in favour of lesbian, gay and bisexual persons in Common Law Africa. Doctor of Laws (LLD) at the Faculty of Law. Pretoria, South Africa, University of Pretoria.
Kanane v The State 2003 (2) BLR 67.
Kgositau, T.R. (2018) SATF and Botswana case: Tshepo Ricki
Kgositau interview with B Camminga.
Legabibo (2016) Press release: Groundbreaking judgement by Botswana Court of Appeal on freedom of association and LGBTI rights. LEGABIBO. Available at: https://legabibo.wordpress.com/2016/03/16/press-release-groundbreaking-judgment-by-botswana-court-of-appeal-on-freedom-of-association-and-lgbti-rights, last accessed 2 August 2019.
McAllister, J. (2013) Tswanarising global gayness: the ‘unAfrican’ argument, Western gay media imagery, local responses and gay culture in Botswana. Culture, Health & Sexuality. 15, 88–101.
National Registration Act 26 of 1986
ND v Attorney General of Botswana and others (2017) MAHGB-000449-15
Powell, A. (2018) Activists Hail Botswana Ruling to Allow Gender Reclassification. 12 January 2018. VOA. Available at: https://www.voanews.com/a/activists-hail-botswana-ruling-allow-gender-reclassification/4204988.html, last accessed 13 January 2018.
Republic of Botswana Ministry of Health and Wellness (2017) Assessment of legal and regulatory framework or HIV, Aids and Tuberculosis. Available at: http://www.stoptb.org/assets/documents/communities/StopTB_TB%20LEA%20DRAFT_FINAL_Sept%2027.pdf, last accessed 8 August 2019.
Republic of Botswana. 1966.Constitution of Botswana. Gaborone: Government Printer
RightsAdmin (2018) Botswana activists deplore anti-trans attack. Rights Africa – Equal Rights, One Voice! Available at: https://rightsafrica.com/2018/11/19/botswana-activists-deplore-anti-trans-attack, last accessed 26 November 2018.
Southern African Litigation Centre (2018) Reflecting on the Closing of Civic Spaces and its Impact on Marginalised Groups in Southern Africa. Available at: http://www.southernafricalitigationcentre.org/wp-content/uploads/2018/11/SALC-Closing-Civic-Spaces-Report-FINAL-lo-res.pdf, last accessed ???
State v Kanane 1995 BLR 94 (High Court)
Spade, D. (2003) Resisting Medicine, Re/Modeling Gender. Berkley Women’s Law Journal. 15, 15–37.
Thomas Reuters Foundation (2017) Activists celebrate Botswana’s transgender court victory. Reuters. 4 October. Available at: https://www.reuters.com/article/us-botswana-transgender-court-idUSKBN1C91OW, last accessed 12 August 2019.
Thoreson, R. (2013) Beyond equality: The post-apartheid counternarrative of trans and intersex movements in South Africa. African Affairs. 112 (449), 646–665.
Thoreson, R. (2018) Lesbian, Gay, Bisexual, Transgender, Queer, and Intersex (LGBTQI) Rights and Sub-Saharan Africa. Oxford Research Encyclopedia of Politics.
Rantao, T. (2018) Tshiamo Rantao ND and Legabibo interview via skype with B Camminga
ND (2018) Interview ND case interview Botswana with B Camminga
Currier, A. (2012) Out in Africa: LGBT Organising in Namibia and South Africa. Minneapolis, University of Minnesota Press.
Stychin, C. (1996) Constituting Sexuality: The Struggle for Sexual Orientation in the South African Bill of Rights. Journal of Law and
Society. 23 (4), 455–483.
Valentine, D. (2006) “I Went to Bed with my Own Kind Once": The Erasure of Desire in the Name of Identity. In: Stephen Whittle & Susan Stryker (eds.). The Transgender Studies Reader. New York, Routledge. pp. 407–420.
Vartabedian, J. (2018) Brazilian Travesti Migrations: Gender, Sexualities and Embodiment Experiences. London, Palgrave Macmillan.
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