Recognising gender identity is recognising human rights

There is no document in this world as important as an identification document (ID). Be it in the form of a birth certificate, driver’s license, national documentation or a passport. This document is universal recognition of someone – how one is seen, acknowledged and recognised by the state.

Its power is endless. It sets premise for the enjoyment of basic human rights such as access to education and governs movement within society and the global community. It can mean access to opportunities like employment, housing, and travel. The holistic dignity of a human being can be placed in an ID because of the constant need for institutions to recognise you – and what it can mean when they don’t.

While the document bears great weight for every human being, there are instances where, because of the intersections of class, race, and gender, some people are not afforded this dignity. As became the case for Rickie Kgositau. Kgositau is a transwoman whose gender marker on her national ID document did not reflect her being. More than an inconvenience, it also bore emotional distress, increased her vulnerability to abuse and violence, and infringed on her fundamental right to dignity. Taking the government to task, Kgositau, represented by human rights lawyer Lesego Nchunga, filed an application requesting that the High Court of Botswana order the government to change the gender marker on her ID (Omang) from male to female.

The application included supporting evidence, such as an affidavit from Kgositau’s mother, sibling and relatives, as well as psychological and medical evidence noting that her innate gender identity is – and had since an early age – been female. Further, legal documentation found that the applicant noted that sex encompasses more than chromosomal factors and the ID should grant precedence to her holistic gender identity, which only became apparent after her birth.

The case was heard at the close of 2017 in the Botswana High court, where High Court Judge Leatile Dambe gave a ruling that effectively granted Kgositau her human rights. Judge Dambe ordered that the gender markers on all her official documents be in line with her gender identity, citing that: “The Registrar of Births and Deaths amend the birth certificate of Miss Kgositau to show that she is female and not male within 7 seven days… The Director of the Registrar of National Registration issue an Identity Document (Omang) identifying her as female within 21 days.”

Not only is this a win for Kgositau, but this landmark case – witnessed by the public through the media’s lens – proves a commitment by Botswana’s legislation to uphold human rights for every person. In March 2016, the Botswana court of appeal gave an important judgement on a different matter but which spoke the same legal truth:

“Members of the gay, lesbian and transgender community, although no doubt a small minority, and unacceptable to some on religious or other grounds, form part of the rich diversity of any nation and are fully entitled in Botswana, as in any other progressive state, to the constitutional protection of their dignity,”

according to an excerpt from Attorney General vs. Thuto Rammoge & 19 others.

Kgositau’s case further builds on the holistic inclusion of the trans and intersex communities in Botswana. This, following another successful ruling for a trans man in the case of ND vs the Attorney General of Botswana on 29 September last year. In this case the court held that the refusal to change the applicant’s gender marker was “unreasonable and violated his rights to dignity, privacy, freedom of expression, equal protection of the law, freedom from discrimination and freedom from inhumane and degrading treatment”.

Judge Nthomiwa, who presided the case, noted that recognition of the applicant’s gender identity lies at the fundamental right to dignity. Judge Nthomiwa further stated that gender identity constitutes the core of one’s sense of being and remains an integral of a person’s identity.

Kgostitau’s justice and the previous ruling on 29 September can be regarded as a beckoning towards an inclusive society in Botswana. A vision of a richly diverse and inclusive nation where enjoyment of basic human rights is realised in the near future.