Commission calls for LGBTQI inclusion
The Presidential Commission of Inquiry into the Review of Constitution of Botswana has recommended that Section 15 of the Constitution be amended to include intersex as a ground for non-discrimination.
It further recommended that the Births and Deaths Registration Act be amended to provide for delayed selection of gender marks for intersex people until the individual is fully developed to choose their preferred gender mark.
This comes after the LGBTQI community had been fighting for the government to recognize and protect the community. The community also called for delayed mark on the Birth and Deaths Registration Act saying it was difficult for it to access health services and other necessary services.
They also called for the government to make laws that would protect them from discrimination from community members that in most cases result in assaults and rape. According to observations made at kgotla meetings, some were of the view that the Constitution did not recognise the rights of those with intersex traits or atypical sex characteristics.
The Commission further stated that reports were made that people with those traits faced stigma at health care facilities and that requisite care for them was unavailable. It also pointed out that intersex people faced discrimination in sports and education. “While intersex people did not fit the binary of female or male, there was expectation under the law for them to select their gender along the lines of ‘female’ or ‘male’.
This was viewed as discrimination against intersex people. Views were also expressed that the gender marks of the intersex people should be delayed until the individual has fully developed to make a choice.”
“People called for a change of gender marks. Presenters called for the recognition of intersex people and or people with atypical sex characteristics under Section 3 of the Constitution,” said the Commission. It further pointed out that there were suggestions that Constitutional provisions be made for them to marry, adopt children and surrogacy so as to enjoy the right to a family of choice.
In an interview with Rainbow Identity Association director, Skipper Mogapi about the recommendations, he applauded the Commission
for taking up their request in the amendments of Birth and Death Act.
He emphasized that they demanded legal recognition of intersex persons saying they accepted delay of gender mark for intersex persons born with ambiguous sex.
However, he pointed out that there were intersex people whose sex characteristics show at later stage and that not visible but internal. “We are happy that intersex is included as ground of non discrimination however it is an issue of language.
It should be written as sex characteristics included as ground of non-discrimination. As Rainbow Identity Association (RIA) an organization formed in 2008 we address the challenges faced by transgender and intersex persons in Botswana and to promote their rights, access to service and overall visibility that works to minimise stigma and discrimination,” he explained.
Moreover, the Commission stated that it agrees with submissions made by the kgotla in support of the rights of Gay, Lesbian, Bisexual, Transgender, Queer and Intersex people. It added that further submissions were made that Botswana was a tolerant nation and that the LGBTQI community must be protected from discriminatory religion and cultural ideologies.
It further said the submissions advocated for coexistence of religion, culture and the rights of the LGBTQI, and that their rights should be included in the Constitution. The Commission further indicated that those who made the submissions advocated for the right to health, the right to education, the right to family of choice, the right to work, and to a safe and healthy working environment. It noted those views and pointed out that Sections 3 and 15 of the Constitution make provisions for the fundamental rights and freedom of the individual and protects against discrimination.
“To this end, Gays, Lesbians, Bisexual people have invoked these sections for redress as evicted by the case of Attorney General versus Letsweletse Mothisdiemang and others, Court of Appeal Case No, CACGB-157-19. The Commission agrees with these submissions,” it stated.
However, still in the LGBTQI issue, the commission also stated that at kgotla meetings, presenters expressed condescension or disdain for same sex relationship where most of those presenters leaned on culture and religion. It further indicated that presenters stressed that same sex was foreign and did not have a place in Botswana society.
It added that in that context, presenters highlighted that same sex relationships were an eyesore, and an embarrassment and should not be accommodated in the Constitution. “Religious presenters underlined that Botswana subscribes to Christian values as evidenced in the lyrics of the country’s National Anthem, ‘Fatshe leno La Rona ke Mpho Ya Modimo. Other examples given to demonstrate Botswana’s allegiance to Christianity included the use of the Bible at swearing ceremonies of the President, Vice President, Members of Parliament, Cabinet, the Judiciary and many others.
According to this view, Christianity prohibits same sex relationships. God Adam (man) and Eve (woman) and created human beings in his own image, to be fruitful and to multiply, as written in the Book of Genesis 1 verse 28 in the Holy Bible, which was not possible in same sex relationships,” it stated. It further pointed out that that group stated that same sex undermined the family unit because same sex couple could not reproduce.
The religious presenters were also said to have proposed that religious leaders and dikgosi use their powers as overseers appointed by God to discourage same sex acts. They are also said to have called for criminalization of same sex relationships and called for 36-month term of imprisonment and corporal punishment. However, the Commission stated that some presenters expressed support for the rights of LGBTQI people expressing that their fundamental rights should be protected emphasizing that Botswana was a tolerant nation and that the LGBTQI community should be protected from discriminatory religious and cultural practices.
These presenters are also said to have highlighted that culture and religion could coexist with the rights of those who were different. “Supporters of LQBTQI+ called for the amendment of Section 3 of the Constitution to include protection of the LGBTQI+ community.
Their right to receive appropriate health care including sex or gender reassignment surgery and requisite hormonal medicine was emphasized. There was also request to change the Marriage Act to give the LGBTQI people to marry as they wished.
It was also highlighted that deliberate efforts should be undertaken to raise public awareness about same sex marriage to ensure that people accept the practice,” it stated.