ND v. Attorney General of Botswana and others
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.
ND is a transgender man, and his sex assigned at birth was female. Because the gender marker on ND’s national identity card did not match his expressed gender or gender identity, the refusal of the government to change his gender marker exposed him to ongoing and extreme emotional stress and discomfort.
Under the National Registration Regulations, the purpose of the identity document is to provide a record of a person's physical appearance and reflect their particular characteristics. The Registrar has the discretion to change the identification markers when a change in those characteristics has a material effect on a person’s identification. Identity card holders can replace their photograph, for example, if they feel it no longer reflects who they are. The Registrar has discretion to determine if a change is required, but public officials are bound by Botswanan law to be reasonable and to uphold fundamental rights when exercising discretion. Although the Registrar and Attorney General argued that the gender marker change could not be allowed in the absence of a statute that provides a clear medical and legal threshold, the Court found that the discretion standard does not require any medical or legal threshold. In this case, the Court found the Registrar's exercise of discretion was not reasonable.
However, the Court focused its reasoning on the violations of constitutional rights. The Court observed that the Botswanan constitution should be interpreted as a living document, informed by "contemporary norms and circumstances," including by reference to relevant international decisions. Constitutional rights in Botswana apply to all persons and are founded on human dignity.
The Court found that because ND was denied recognition of his gender identity through proper identification, and recognition is part of dignity, the Registrar failed to protect his human dignity. The Registrar’s refusal also violated ND's freedom of expression, his right to equal protection (because non-recognition of his identity made him particularly vulnerable to harassment, violence, and sexual assault), and his right to be free from inhumane and degrading treatment and discrimination. Although gender identity is not included in the prohibited forms of discrimination listed in the constitution, the list is not exhaustive.
The Court also found a violation of ND's right to privacy, and in fact, acknowledged with concern the ongoing distress and discomfort experienced by ND when he is required to explain intimate details of his life to strangers whenever he seeks to access routine services, simply because his identity document does not match his expressed gender or gender identity. The High Court observed that “arbitrary interference or embarrassment," and the violation of his privacy rights, could be avoided or mitigated by the state changing the gender marker on the identity document.
The Court recalled that the burden is on the state to prove that an interference with a person's constitutional rights is legitimate and justifiable. The government must identify a social ill that it is addressing, show how that it justifies the interference, and show that the interference is proportional to that goal. Considering that gender identity “constitutes the core of one’s sense of being and is an integral part of a person’s identity,” the Court found the government showed no legitimate justification for its discriminatory treatment of transgender persons. Indeed, the government’s argument that changing the gender marker would somehow affect national security was unsupported by evidence, and a mismatch between gender marker and gender identity actually makes law enforcement less effective.
The Court also addressed the government's argument that sex and gender are distinct, and that national identification referred to sex determined at birth. Through a survey of other jurisdictions, the Court detailed how sex has been held by many courts to be a combination of factors, including biological, social, and psychological characteristics, as well as a person's innate feeling of what different sexes mean. The Court thus found the government's interpretation of sex was unfoundedly restrictive.
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.
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.