The landlocked country, bordering South Africa and Zimbabwe, has made significant strides in recognizing trans people in court and defending their rights as citizens worthy of protection under the law.
In November, the Lobatse High Court heard the case of a trans man who wished to have his gender marker changed on his official documents. The ruling on this case, ND v. Attorney General, was in favor of the trans man and this set a strong precedent for the most recent legal victory for trans rights advocates in Botswana.
On Dec. 13, Tshepo Ricki Kgositau received a ruling in her favor after months of agonizing delays — the case was originally to be heard in August but was abruptly postponed due to the judge’s unavailability — which instructed that:
1) The Registrar of Births and Deaths amend the birth certificate of Kgositau to show that she is female and not male within seven seven days.
2) The Director of the Registrar of National Registration issue an Identity Document (Omang) identifying her as female within 21 days.
I have known about Kgositau’s case for some years now — in 2011 she had applied to the Civil and National Registration office to have her gender marker changed, but was refused due to the fact that Botswana’s laws do not recognize trans people and so there was no allowance for this change to be made. Now, in 2017, we have seen two landmark cases place trans people’s identification rights within the socio-political space of contemporary Botswana; but while the world celebrates these victories, one can’t help but question what this means for the road ahead.
Botswana, a former British protectorate, inherited homophobic legislation from the U.K. in the 1800s and this has not been changed even after the country gained independence in 1966. Over the past decade, there has been a marked urgency in human rights focused action by LGBT+ activists and organizations in the country, and the government has been publicly and privately challenged to face its negligence of LGBT+ people within the country — even a former president of the country is now in the trenches.
The end of the legal battle to register LeGaBiBo (Lesbians, Gays and Bisexuals of Botswana) — an organization which advocates for sexual and reproductive health awareness for LGBT+ people — in 2016 made significant waves across the country, but one could argue that it left the wrong impression on most people in Botswana.
Following the publicity around the organization being granted the right to be legally registered, many people thought this meant that Botswana had moved to decriminalize homosexuality. This was not the case. This confusion led to palpable tensions between religious leaders, politicians, activists and the general public. Similarly, with the two trans related victories, many people are under the impression that all trans-identifying people now have access to changing their gender markers should they so wish; and this too is not true.
At present, the government of Botswana still doesn’t recognize trans people without the intervention of the court system. This is where the two cases have now set a precedent for dialogue to take place so as to inform policy reforms and potential changes in legislation. Speaking to Bradley Fortuin, communication and documentation officer at LeGaBiBo, he expressed that “there is now a lot of responsibility for public education and sensitization which falls on the government and on organizations.”
While the rulings have allowed two individuals to change their markers, there is still limited public knowledge of how this affects all trans and non-trans people of Botswana. Fortuin alluded to the potential now that these cases allow for motions to be proposed for discussion at parliamentary level, and while I agree, I do believe that members of parliament — many of whom only understand LGBT+ matters through the same lens as the general public — must also be educated and sensitised prior to being tasked with discussing this matter so as to achieve the best possible results for trans people in the foreseeable future.
Following the LeGaBiBo’s registration victory, the organization garnered the support of the Gaborone City Council to have a motion tabled in parliament to incorporate MSM (men who have sex with men) specific care and interventions in the national HIV/AIDS strategy. Now, almost a year and a half later, this incorporation is yet to be detailed and implemented; although it has been said that discussions have proceeded. Similarly, for trans recognition by the laws of Botswana to become a reality, I believe that activists, organizations and educators need to band together to map a way forward for a country specific approach to trans issues.
Setswana, the national language of Botswana, is essentially gender neutral and has no chronicled trans specific terminology. In order for trans lives to be marked as legitimate and worthy of protection against discrimination in Botswana, these protections need to be detailed in both English (the official language of Botswana and language of the courts) and Setswana (a language spoken by a large number of the population of Botswana.) New ways of understanding trans livelihoods need to be formed. Richer representations of trans-diverse people of Botswana need to populate media outputs. Robust negotiations must take place to see what is required to legally change your gender marker — especially if we are to move to not have surgery as a prerequisite for gender marker changes. I believe that Botswana can follow in the footsteps of other countries (e.g. Argentina, Bolivia, Colombia and Ecuador) which allow for marker determinations without subscribing to the medicalized model of viewing trans people as gender defectors.
I have hope that in the next decade, as Botswana inches towards 60 years of independence, we can see innovative road-mapping for the realization and protection of LGBT+ people’s rights. I have hope that, under the right direction and with intergenerational dialogue in all the languages of the people of Botswana, trans diverse people will see their lives enriched and that they will enrich the national landscape with all their wonder. But, as with all things hanging on hope, it can only come to be with the help of others. In any case, the opening words of the national anthem, “Fatshe leno la rona” (This, our land), are starting to feel more inclusive for LGBT+ Botswana.