ND v. Attorney General of Botswana and others

Nature of the Case

In this case, a transgender man (ND) sought to change his gender marker on his Omang (national identity document) and was denied by the Registrar of National Registration in Botswana. He was assigned female at birth, and his identity document stated his gender as female. The High Court found that the failure of the gender marker to match ND’s gender identity, including his physical appearance, subjected ND to severe insecurity, harm, and discrimination. In addition, the Court held that the Registrar’s refusal violated ND’s rights to privacy, equal protection, freedom from degrading and inhuman treatment, freedom of expression, and protection from discrimination. Noting the lack of a legitimate governmental justification for any of the impingements on ND’s constitutional rights, the High Court ordered the Registrar to issue a new identity document that reflects his male gender identity.

Enforcement of the Decision and Outcomes

The High Court ordered the Registrar to issue a new identity document that accurately reflects ND’s gender identity, changing the gender marker from female to male. In January 2018, ND received his identity document correctly reflecting his gender identity.

Significance of the Case

This decision is one in a series of four major rulings from Botswanan courts that significantly advance the protection of the rights of the LGBTQ+ community. In March 2016, a court ordered the government to legally register the nongovernmental organization (NGO) Lesbians, Gays & Bisexuals of Botswana (LEGABIBO), the first registered entity for the protection of the rights of the LGBT community in the country. In December 2017, a Botswanan court ordered that the government recognize the gender identity of a transgender woman. More recently, in a 2019 decision, the High Court struck down the colonial-era criminalization of consensual same-sex sexual relations as unconstitutional. These are important victories, with advocates noting that these cases have made visible, and affirmed the rights of, the LGBT community in public discourse, with the hope that they will serve as precedents to advance the protection of LGBTQ+ rights in Botswana, regionally, and beyond.

For their contributions, special thanks to ESCR-Net member: the Program on Human Rights and the Global Economy (PHRGE) at Northeastern University.