A landmark case in which a local transgender woman, Tshepo Kgositau, is challenging the refusal of the Registrar of National Registration to change the gender marker on her identity document has been set for argument on December 12 this year. The matter was postponed on Friday as the presiding Judge – Justice Leatile Dambe – was unavailable to hear the matter. Dambe is apparently on a leave of absence outside the country and will only be back to work on the same date the matter is to be heard. Kgositau and her legal representative Lesego Nchunga of Nchunga and Associates appeared briefly before Justice Michael Mothobi on Friday and his assistance to them could only be to postpone the matter to a later date when Justice Dambe would be available. The outspoken gender and human rights activist submits that the refusal to change her gender marker violated her rights to dignity, privacy, freedom of expression, equal protection of the law, freedom from discrimination and freedom from inhumane and degrading treatment. She was advised to seek a court order by the regional registrar in 2011 after she applied to the Civil and National Registration office in Gaborone to have her gender marker changed from male to female, as her birth assigned gender does not correspond with her internal and individual experience of gender. Her application was denied. The High Court is expected to consider whether the respondents’ (state) refusal to issue Kgositau with a new identity document that correctly reflects her gender identity as ‘female’ constitutes a violation of her constitutional rights and whether the respondents’ justification for the limitation of the applicant’s constitutional rights is reasonable and justifiable.
The case, which is the first of its kind in Botswana, has attracted wide media publicity and subsequently an overwhelming attention from the general public too, some of which is negative. Despite this, Kgositau swears she won’t be despaired and will fight for her rights as a Transwoman and that of others facing a similar ordeal. “I am not hurt but disappointed that Botswana continues to call itself a nation principled on "Botho" (Ubuntu) yet that very humanity seems to end where trans persons come into the picture. I am saddened by the fact that a case of such a magnitude that is a 1st in Botswana to seek such a constitutional interpretation that will change the face of our law and justice system has been turned into a flimsy media frenzy,” she wrote in her official Facebook page on Thursday. According to Kgositau, discrimination and abuse against women (Transwomen included) has been normalised and it is disturbing that Batswana as a society and nation find it suitable to try humiliate a woman, derogate her, torment her and degender her despite continuous calls to stop. She narrated how as a Trans person she had to fight against the odds to succeed in life and said it was time to put a stop to such and afford other trans people a hassle free life. “I refuse for the narrative to continue of transgender persons who drop out of school because of bullying, I refuse to have had all these privileges of having attained a tertiary education all to myself when I know tonnes of intelligent and hardworking transgender Batswana who can and actually even contribute to our economic development. I cannot sit by and watch as Batswana continue to instigate violence which pushes over 54% of transgender persons to commit suicide, No! I demand that the rights of transgender persons be protected better than this by a government they have elected,” Kgositau wrote.
Kgositau’s legal representatives are supported by the Southern Africa Litigation Centre while the state is represented by Olayemi Aganga from the Attorney General’s Chambers. Kgositau comes from an International Relations background with years of experience as an advocate for transgender person’s human rights. She is the Executive Director of Gender DynamiX, a regional transgender focused organisation based in Cape Town-South Africa advocating for inclusive policies and laws for transgender persons in over 12 Southern African countries. Transgender is a term for people whose gender identity, expression or behavior is different from those typically associated with their assigned sex at birth. Trans" is shorthand for "transgender." Transgender Woman on the other hand is a term for a transgender individual who currently identifies as a woman.