Home » News » General » I am a She not He – She tells Gov’t

I am a She not He – She tells Gov’t

Publishing Date : 15 August, 2017


In what could be a letdown for the LGBTI community in Botswana, Justice Leatile Dambe missed the application of the landmark case in which transgender woman, Tshepo Ricki Kgositau wants to challenge the refusal of the Registrar of National Registration to change the gender marker on her identity document.

Justice Dambe who is presiding over the case was said to be on leave of absence. Kgositau, 30, wants the gender marker on her identity document changed from Male to Female. Members of the Lesbians, Gays, Bisexual, Transgender and Intersex (LGBTI) thronged the court gallery in numbers in support of “Ricky.” High Court through Justice Mothobi announced the postponed of the case to 12 December in which Dambe will have occupied her seat. At the heart of the matter, Ricky is challenging the refusal of the Botswana government, department of Registrar of National Registration to change the gender marker on her identity document as a transgender woman.

Currently the gender marker illustrates that Ricky is a male. According to the court papers, Ricky 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. “The applicant requests that the High Court orders the respondents (government) to change the gender marker on her identity document (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,” papers point out.
It is understood that the court 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. “The applicant (Ricky) 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,” papers highlight.

Why Ricky wants to change her omang from male to female

Ricky submits in the papers 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. She submits that the refusal to change her gender marker violated her rights to dignity, privacy, freedom of expression, equal protection of the law, freedom from discrimination and freedom from inhumane and degrading treatment.

What the High Court will determine on the matter..

She therefore requests the High Court to consider whether the government’s refusal to issue her with a new identity document that correctly reflects her gender identity as ‘female’ constitutes a violation of her constitutional rights. She also wants the court to consider whether the government’s justification for the limitation of the Ricky’s constitutional rights is reasonable and justifiable. The transgender woman argues that the National Registration Act provides the framework by which the State can change the Omang of the applicant to reflect her gender identity and uphold her constitutional rights.

“The Act allows the Registrar to change the particulars of a registered person in circumstances where these particulars materially affect the person’s registration. The applicant (Ricky) argues that the State has a duty to fully realise the constitutional protection of her dignity and having an identity document that correctly reflects her gender identity is fundamental to realising the dignity and security of the applicant.”

Lessons from previous and related cases…

In March 2016, the Botswana Court of Appeal gave an important judgment (Attorney General v Rammoge) which emphasised the human rights apply to every person. “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,” the Judge then stated. Ricky’s case is believed to be a built up on the gays and lesbians judgment and seeks to ensure that the rights of transgender persons are also recognised - in practice as well.    

What is gender identity and transgender?

Gender identity is one's personal experience of one's own gender. Gender identity can correlate with assigned sex at birth, or can differ from it completely. All societies have a set of gender categories that can serve as the basis of the formation of a person's social identity in relation to other members of society. Transgender is denoting or relating to a person whose sense of personal identity and gender does not correspond with their birth sex. The applicant, Tshepo Ricki Kgositau, is represented by Lesego Nchunga of Nchunga & Associates, with the support of the Southern Africa Litigation Centre while the government is represented by the Attorney General.



Do you think the closure of BCL will compel SPEDU to double their efforts in creating job opportunities in the Selibe Phikwe?