Legal Gender Recognition does not need court order

On the 10th November 2020, The Lesbians Gays and Bisexuals of Botswana ( LEGABIBO) in partnership with Southern Africa Litigation Centre ( SALC) launched a policy brief on the Legal Gender Recognition. The policy brief is informed by several sources including: community consultations with transgender and gender nonconforming persons; 2019 research conducted among members of the LGBTI community in Botswana; and the two gender marker court rulings. The development of this policy brief arose as a result of experiences of and concerns from transgender individuals who were refused changing the gender marker on their identity cards despite the two High Court rulings. Transgender and gender diverse individuals who want to change their gender marker are advised by government officials at the Department of Births and Deaths, and the Department of Civil and National Registration to seek court orders to facilitate change of gender marker. As stated by the High Court of Botswana in the ND vs Attorney general of Botswana judgement, Omang plays an important role in the life of every Motswana. In order to get employment, access health services, obtain travel documents, open a bank account and numerous other services, an individual has to have a valid Omang. Consequently, refusal and or delay to issue any Motswana with an Omang is denying them to live a complete and full- filing life with dignity and violates their privacy and freedom of expression. As a result, the policy brief clarifies why the instruction to seek a court order is a misunderstanding and misinterpretation of the judgement on the gender marker change. The judgement clarified that:

Persons can change their gender marker as per the National Registration Act; so changing the gender marker is legally possible. There is no need for a court order The person’s gender is self- identified, there is no need to consult medical doctors. It is import to emphasise that by denying transgender and gender diverse persons the right to change their gender marker, the government is not only resisting to implement the court order, but exposing trans diverse persons to risks of discrimination, violence and abuse. Bradley Fortuin, Community Movement Strengthening Manager Lesbians, Gays and Bisexuals of Botswana ( LEGABIBO)