Justice Nthomiwa grants transgender identity change

02 Oct 2017

In a land mark decision, Lobatse High Court Judge Godfrey Nthomiwa on Friday ruled that transgender persons should be allowed to change their gender as opposed to the assigned gender at birth. Justice Nthomiwa held that the decision by the Registrar of National Registration to refuse to allow the applicant to change her gender contravened the country’s Constitution which guarantees  dignity, privacy, freedom of expression, equal protection of the law, freedom from discrimination and freedom from inhumane and degrading treatment.

The Applicant who cannot be named for legal reasons dragged the Registrar of National Registration before the High Court seeking an order directing the Registrar to change the gender marker on ‘her’ identity document from that of a transgender man.  Before the judgement was delivered on Friday lawyers representing the applicant asked the court that the judgement should not be heard in an open Court but Nthomiwa stated that the lawyers had accepted a Court order that there was no need to hold the case in camera as long as the applicant’s names and personal details remained confidential.

The lawyers agreed with the judge to give the judgement in an open court.    

Nthomiwa observed that the case raised a new issue of change of gender in Botswana and therefore he sought assistance from international decisions that were relevant to the case before him.

Nthomiwa found that the refusal by the Registrar of National Registration to change the applicant’s gender marker was unreasonable and violated his rights to dignity, privacy, and freedom of expression, equal protection of the law, freedom from discrimination and freedom from inhumane and degrading treatment.  Nthomiwa ordered the Registrar of National Registration to issue the Applicant with a new identify card and change the gender marker on the applicant’s identity document from female to male.  

The applicant was represented by Tshiamo Rantao of Rantao and Kewagamang Attorneys and Lesego Nchunga of Nchunga& Associates and supported by the Southern Africa Litigation Centre and Open Society Initiative of Southern Africa.

According to court papers, the applicant is a transgender man. Though he was assigned a female sex at birth, he self-identifies as a man. The applicant presented psychological and medical evidence to the effect that his innate gender identity is and has always been male and that the failure of the State to formally recognise his gender identity has caused him significant trauma. The applicant submitted that his identity document should reflect his gender identity, which only became apparent after his birth. The applicant further submitted that the National Registration Act allows the Registrar to change any particulars of a registered person and to issue that person with a new identity card if there has been a material change to their circumstances.