A case for removing barriers to the legal recognition of transgender identity in Botswana

Abstract

This mini-dissertation is a critical analysis of the judgment in ND v Attorney General and the Registrar of National Registration, decided by the Botswana High Court. The analysis is conducted with a view to making an argument for removing barriers to legal gender recognition for transgender persons in the context of Botswana. The study uses critical feminist theory and identity-based critiques of dominant cultural practices to contest the objectivity of the judgment. In addition, it demonstrates how the approach adopted by the Court reinforces exclusionary and hierarchical norms that further marginalise non-binary and gender non-conforming persons who fall under the transgender umbrella. The mini-dissertation argues that the Court in this case not only pathologised transgender identities but made legal recognition conditional on medical interventions. This position was adopted, notwithstanding a restrictive public health policy environment that precludes gender affirming treatment and which makes access to such services income-based. The study demonstrates that this approach violated understandings of international human rights law which call for self-determination as the basis for legal gender recognition without any restrictive requirements. The mini- dissertation argues that the Court reduced the inquiry into one characterised by paternalism, which conceptualises gender identity within a normative social framework that views gender as a binary antithetic. It demonstrates how the judgment perpetuates gendered power relations and reinforces monolithic expressions of gender. The candidate proposes more balanced approaches to legal gender recognition, in tandem with international standards and responsive to the lived experiences of transgender persons in Botswana. These approaches call for the depathologisation and destigmatisation of gender identity and recommend the recognition of gender plurality and ending gender registration.