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

Abstract

Botswana has seen a steady rise in progressive decisions on the rights of LGBTI persons. Most markedly, in a unanimous decision poised to set the pace for juridical recognition of LGBTI rights in Africa, the Botswana High Court decriminalized same-sex sexual practices between consenting adults in private.1 The Court in Letsweletse Motshidiemang v Attorney General, determined that the ‘regulation of conduct deemed indecent, done in private between consenting adults, is a violation of the constitutional rights to privacy and liberty’. In another landmark ruling, the Botswana Court of Appeal affirmed the constitutional rights of LGBTI persons to assembly, association and expression and asserted that equal protection of the law extended to everyone without distinction. Similarly, in ND v Attorney General (the Gender marker case), the High Court found that a refusal by the Registrar of National Registration to change the gender marker on a transgender (trans) applicant’s identity document had interfered with his constitutional rights. This was a momentous decision that allowed trans people to alter their official identity documents to align them with their experiences of gender (legal gender recognition).