The High Court is on Friday set to hear a landmark case in which a transgender woman, Tshepo Ricki Kgositau, is contesting government’s refusal to change the gender marker on her identity documents.
However, by yesterday evening, lawyers representing Kgositau were fighting to have the case heard tomorrow as Judge Leatile Dambe, who was initially assigned to hear the matter, was said to be out of the country. Consequently, the applicant’s team wanted the High Court to assign a different judge in order for the case to proceed on Friday. The case is supported by the Southern Africa Litigation Centre.
Kgositau is the executive director of Cape Town-based Gender DynamiX - an organisation seeking to realise full human rights for transgender and gender diverse people.
In 2016, Mmegi profiled Kgositau’s struggles and thousands other transgender and gender diverse persons in the region. In a detailed interview, she cited lack of access to legal gender recognition and gender or sex marker change as a prime challenge to affected people in most African countries. Moreover, she said lack of access to education for many gender diverse persons as well as lack of access to general health care services including HIV/AIDS prevention, testing, treatment and care, remained a concern.
“Lack of access to gender affirming health care services, compromised social security and a lack of legal remedies against violence based on perceived or real gender identity, are still problematic as well,” she said.
In 2011, Kgositau applied to the Civil and National Registration office in Gaborone to have her gender marker changed from male to female, as “her birth assigned gender does not correspond with her internal and individual experience of gender”. However, the regional registrar denied that change, rather advising that she seek a court order for the gender marker to be amended.
“The registrar denied the change of the gender marker on my Omang document despite the fact that the National Registration Act states that the registrar can use their discretion to allow this change in circumstances where these particulars materially affect the person’s registration,” she said.
Kgositau said reasons for the refusal were that she was put through a gender verification process that spanned a month, and at one point she was referred to Princess Marina Hospital where a physical exam was done.
“It was a traumatising experience, which I don’t wish any transgender person to go through, and whose results were based on anatomy and biological construct and didn’t speak to my gender identity
Subsequently, an official court application was filed in 2015 after having engaged with the registrar and the Attorney General’s office for some time on the issue. The latter then issued a notice to abide with the court ruling; a decision, which was later withdrawn without going through the court process,” Kgositau’s legal representative, Lesego Nchunga explained.
According to the case summary, the case is premised on the basis that though she was assigned a male sex at birth, “since a very early age she has identified as a woman and subsequently was socialised as one by her family”. Therefore, the applicant requests that the High Court orders the registrar of National Registration and the Attorney General to change the gender marker on her Omang from ‘male’ to ‘female’.
“This is a simple request, which is vital to the protection of the applicant’s human dignity, well-being and security,” the papers’ case summary read.
The application includes supporting evidence on affidavit from her mother, siblings and relatives, as well as psychological and medical evidence to the effect that her innate gender identity is and has since an early age always been female and that her family has embraced her and loved her as a woman.
Further, the applicant submits that sex consists of more than chromosomal or biological factors and that her identity document should reflect and give precedence to her gender identity, which only became apparent after her birth.
Kgositau submits that the incorrect reflection of her gender as ‘male’ instead of ‘female’ on her identity document is causing her “considerable and ongoing emotional distress while increasing her vulnerability to abuse and violence from state and non-state actors”.
Moreover, she says refusal to change her gender marker has violated her rights to dignity, privacy, freedom of expression, equal protection of the law, freedom from discrimination and freedom from inhumane and degrading treatment.
As a result, the application seeks the High Court to consider whether the respondents’ refusal to issue the applicant with a new identity document that correctly reflects her gender identity as ‘female’ constitutes a violation of her constitutional rights, and whether the respondents’ justification for the limitation of the applicant’s constitutional rights is reasonable and justifiable.