One for one and one for all? Human rights and transgender access to legal gender recognition in Botswana

Abstract

In 2017 a surprising development took place in an African nation with no lesbian, gay, bisexual or transgender (LGBT) rights or protections to speak of. In two separate cases, one involving a transgender man and the other a transgender woman, the Botswana High Court ruled in favour of the two litigants. The rulings allowed each to have their gender markers on their identity documents adjusted. This was a historical first on the African continent. This paper explores how this came to pass. Providing a close reading of the Botswana cases I contend that, perhaps surprisingly, the law though crucial, seems to function as simply the final decision-making tool at the judges' disposal. Drawing on interviews undertaken with both litigants and their legal teams alongside available media including op-eds’ by members of the litigation team, I provide a comparative analysis of the two cases. I argue that each case followed a distinct strategy and that this may prove pertinent to future jurisprudence in the region. Beyond the much-derided framing of gender identity as a human right in Africa, in cases such as these it would seem that for transgender people, the heteronormative ways in which litigants are presented, along with their public in/visibility and perceived im/mobility can be critical to their outcomes.