Transgender Case Postponed To December
Goitsemodimo Kaelo | Monday August 7, 2017 18:00
The matter was set for arguing before Justice Leatile Dambe, who however, is said to be on sick leave and out of the country. However, the matter was placed before Justice Michael Mothobi who could not proceed with the case but set a new date, much to the heel-kicking frustration of the packed courtroom.
The lawyers representing Kgositau had, on Thursday, been fighting to have the case assigned a different judge and heard on Friday upon finding out that Justice Dambe is out of the country.
Mothobi declined to hear the case saying he has not been assigned to dispose it, but said the substantive judge has proposed December 12, 2017.
“I will confirm whether on that date it will be status update or arguments,” he 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.
“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 The latter then issued a notice to abide with the court ruling; a decision, which was later withdrawn without going through the court process,” Kgositau’s legal representative, Lesego Nchunga explained.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’.
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.
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.