The role of civil society organisations in strategic litigation for transgender rights in Malawi

Abstract

This study investigates the role of civil society organizations (CSOs) in advancing transgender rights in Malawi through strategic litigation. It examines the legal and socio-cultural barriers faced by transgender persons, including criminalisation under Malawi’s Penal Code, lack of gender recognition mechanisms, discrimination in healthcare, and state-sanctioned violence. Despite constitutional guarantees of equality and dignity, Malawi’s laws and policies fail to align with international human rights obligations. Thus, transgender rights remain marginalised within broader LGBTQ+ advocacy. Using the Legal Mobilization Theory, the research analyses strategies used by CSO’s in Malawi, challenges faced, and limited successes in strategic litigation. Findings reveal that CSOs in Malawi have primarily focused on decriminalising same-sex relations rather than transgender-specific issues. As a result, they have faced politicisation, judicial resistance, and public hostility. Landmark cases in Malawi like Republic v Monjeza & Chimbalanga (2009) and State v Gonani (2021) illustrate how courts disregard gender identity and uphold discriminatory laws. A 2024 constitutional challenge (Akster & Gonani) was dismissed, emphasizing legislative over judicial action. Comparative lessons from Botswana (ND v Attorney General, 2017) and Zimbabwe (Nathanson v Nteliso, 2019) demonstrate successful transgender rights litigation through humanising narratives, distinct framing from LGB issues, and leveraging domestic laws for gender recognition. The study recommends that CSOs in Malawi should strategically reframe litigation to center gender identity rather than subsuming it under broader LGB advocacy. This requires separating transgender-specific issues from sexual orientation debates to challenge discriminatory laws and practices directly. CSOs must leverage existing domestic legal frameworks, such as the National Registration Act (which permits changes to identity documents) and constitutional guarantees of dignity and equality, while forging alliances with policymakers, the judiciary, and international human rights bodies to amplify pressure for reform. Additionally,prioritising health rights and documentation of violations to strengthen advocacy. This research underscores the urgent need for legal reform, strategic reframing, and inclusive policies to uphold transgender rights in Malawi.