LEGAL GENDER RECOGNITION IN BOTSWANA

An analysis of law and policy in the context of international best practice

Legal gender recognition is about a person’s recognition and protection before the law and ability to navigate through areas of daily life. It refers to transgender people’s ability to obtain official identification documents that reflect their name and gender identity, through legal and administrative processes. These process include changing name details and gender markers on identification documents and administrative records, such as birth certificates, identity cards, passports, driver’s license and educational and employment records.

Identification documents are increasingly required for many activities in daily life, including routine tasks such as collecting a parcel from the post office, opening a bank account, joining the gym, or buying airplane tickets. A transgender person’s ability to live in dignity, equality and security is severely compromised if they do not have an identity document that matches their gender identity, and that instead lists their title, name, sex and/or gender based on sex

assigned to them at birth.

In 2017, the Botswana High Court ordered the Government to change the gender marker on the identification document of a transgender individual. In doing so, the High Court held that;

“…the state has a duty to uphold the fundamental human rights of every person and to promote tolerance, acceptance and diversity within our constitutional democracy. This includes taking all necessary legislative, administrative and other measures to ensure that procedures exist whereby all State-issued identity documents which indicate a person’s gender/sex reflect the person’s self-defined gender identity.”

The government of Botswana has agreed to abide by this court decision and gave its commitment to undertake an ongoing review of national laws “to address discrimination of marginalized and disadvantaged groups in society such as …lesbians, gays, bisexuals, transgender and/or intersex persons.”

The Ministry of Health and wellness in a 2017 report recognized the need for full legal gender recognition;

“Given the practical challenges and the risk of rights violations when individuals have identity documents “mismatched” with their gender identity, review section 16 of the National registration Ac with the aim of ensuring transgender and intersex persons are able to change the gender marker in their identity documents.

If this law is changed, it would be beneficial to review additional legal provisions concerning gender identity to ensure harmonisation.”

On the 10th November 2020, the Lesbians, Gays and Bisexuals of Botswana (LEGABIBO) in partnership with the Southern Africa Litigation Centre ( SALC) launched a policy brief document. The document is a research brief that provides up to date information to the Government of Botswana, based on empirical evidence and international best practices, to inform the development of legislative and administrative measures that ensure the procedures for legal gender recognition ordered by court.

The brief was developed in response to reports of administrative and procedural challenges for people wanting to change their legal gender marker after the ND v Attorney General of Botswana judgment. It was developed in consultation with organizations representing the interests of persons who identify as transgender, gender non-conforming or gender diverse, who met for a consultative meeting in Gaborone on the 5th and 6th of October 2019. At this meeting, transgender and gender diverse people shared experiences of being denied a change of gender marker in their identity documents. People said they had been told that they needed a court order in order to change their gender marker. Such requests indicate a misunderstanding of the ND V Attorney General of Botswana judgment among the authorities responsible for changes to identity document s . This misunderstanding results in a barrier for transgender people who want to change their gender marker in their identity documents. It highlights the need for government of Botswana to take legislative, administrative and other measures to ensure that people can change their gender marker freely without barriers.

The legal recognition of gender identity permits transgender people to align their identity documents with their expressed gender or gender identity and is an important step towards the realization of the fundamental rights of transgender persons. To this end, legal gender recognition has been identified as a crucial step for achieving a number of Sustainable Development Goals (SDGs), including gender equality, ensuring healthy lives and fulfilling the commitment to “leave no one behind.” Following the principle of selfdetermination, any person who wishes to access legal gender recognition should be able to do so.

This policy brief was researched and written by Prof Allex Muller from the University of Cape Town and is available on request. Contact matlhogonolo@legabibo.org