Intersex, transgender persons demand legal recognition

Yvonne Mooka - BG Reporter
Wednesday, 11 July 2018
Intersex, transgender persons demand legal recognition

Members of the Rainbow Identity Association (RIA) will soon present a policy brief before Parliament. RIA, registered in 2010, advocates for the rights of intersex and transgender people in Botswana. It has over 100 registered members. In an interview with Botswana Guardian, RIA director Skipper Mogapi said that they were waiting to have a slot, through the Women’s Parliamentary Caucus led by MP Botlogile Tshireletso.

The initial agreement was for RIA to come on June 27 but it was postponed to a date to be announced. The term intersex refers to people born with variations in physical sex characteristics (such as chromosomes, gonads, and genitals) that are considered to be either male or female at the same time, only partially male or partially female, or neither male nor female. While some people with intersex variations also describe their sex or gender identity as non-binary, most are either male or female. The World Health Organisation (WHO) classifies intersex as a disorder, known as disorders of sex development (DSD) that can be treated and cured. This, according to RIA is against international law on human rights. A major concern for intersex people is that the so-called sex normalising procedures are often undertaken during their infancy and childhood, to alter their bodies, particularly the sexual organs, to make them conform to gendered physical norms, including through repeated surgeries, hormonal interventions and other measures.

As a result such children may be subjected to medically unnecessary, often irreversible, interventions that may have lifelong consequences for their physical and mental health, including irreversible termination of all or some of their reproductive and sexual capacity. Medical procedures may sometimes be justified in cases of conditions that pose a health risk or are considered life threatening. Such procedures however are sometimes proposed on the basis of weak evidence, without discussing and considering alternative solutions, says RIA. Challenges faced by intersex persons in Botswana include:

Legal recognition
At birth a birth certificate is issued, as a form of recognition and documentation. This is a general global practice. In Botswana, the national identity card, Omang, educational documents, drivers’ license are among the struggle areas for intersex persons, as they bear only female and male gender binaries. Therefore RIA says it is a site for discrimination and inequality, as intersex persons struggle to have an appropriate gender allocated for them. The Births and Registration Act (BDRA) provides only for female and male binaries, for securing identity documents in Botswana. It is therefore disconnected to the reality of those in the gender margins. RIA feels it needs to be reviewed and amended to include those who do not conform to the normative binaries.

“However, the same Act allows for change of gender descriptor, on the legal document the procedure is only known by those working in the office of Omang and it is a ‘discretionary’ privilege,” states the Policy Brief.
There have been a few cases where intersex persons have managed to change their identity cards, to suit the gender they identity with, albeit without any publicly known processes. This, according to RIA also presents a problematic view and assumption that, change of gender status may be seen as a privilege for some and leaving others out. "An example is Case Y who asked a Kgosi to write a letter to the National Register to change their Omang, while others were sent to Princess Marina hospital for test. The process must be made clear and not disadvantage others, where multiple discrimination already exists,” reads the Policy Brief.

Access to health services
International law classifies surgeries performed on intersex persons, to conform to either male or female as genital mutilation. Access to health and health services is amongst the struggles and challenges that intersex person’s face. The challenges are attributed to the unnecessary surgeries that are performed on intersex children. Reproductive health and enjoyment of sex are greatly compromised. In terms of fertility, the surgeries, may lead to sterility and infertility. Therefore where intersex children are subjected to surgeries, they are denied the right to best attainable health, which is a fundamental human right.
Stigma and discrimination
As a result of the biological difference of intersex persons they have been kept secretive and face challenges in their communities, homes and school and professional environments. It could be an issue of physical outlook, use of ablutions and in a school environment, boarding facilities and shared accommodation.

Intersex students suffer in boarding schools as in the case of someone who was in a boarding school and had to wake at 4am, everyday during winter to bath before everyone woke up as he was scared they will recognise that he has long clitoris than other girls. Also he was forced to stay in female dormitory and wear a dress and the discomfort caused the intersex student not to perform well in school.

According to RIA, in prison facilities, an intersex person may be faced with scrutiny and shamed for their difference. Stigma and discrimination is multi-sectional and deprives intersex persons the quality of life that they must be able to enjoy.
Another harmful practice is in initiation schools, which some local tribes are still practising. Intersex persons are subjected to violence during initiation due to the fact that the ritual remains secret and circumcision has robbed many intersex persons of their sexual rights and the right to self- determination and bodily autonomy.

What should be done?
One of the greatest challenges faced by intersex persons in Botswana is legal recognition. Legal recognition has fundamental bearings on one’s identity, social standing, and the quality of life that one can enjoy. While the right to health is not enshrined in the Constitution, the right to life encapsulates the overall rights that human beings are inherently entitled to. Intersex persons must have adequate, quality and effective access to health services. There should be a transparent guide by MoH on how they are dealing with intersex births, says the Policy Brief, adding that it is common cause that some intersex persons are subjected to unnecessary genital surgeries, the consequence of which are fatal: emotionally, physically and mentally and health wise.
More research must be conducted by the MoH in the lived lives of intersex persons in Botswana, says the Brief.

RIA recommends that government should get more specialists and make guidelines public so that intersex persons know how to access services especially in public hospitals. “The only way change can be effected is when there is an open dialogue and understanding of what intersex is. This will also give way for awareness, so that intersex does not remain a hidden and shameful gender and life,” says the brief. The Association also advises that MoH together with the Ministry of Home Affairs must liberate and include intersex persons in granting their rights to identity.

“It is unfortunate and sad that an intersex person may be returned back home by another country’s immigration, because their identity documents do not match their physical outlook. In including intersex status and any mark as maybe appropriate, is to validate the right to identity and a secure environment. Therefore both Ministries must work together to protect the rights of intersex persons,” says the document.Members also state that there should be capacity training for all those who interact with infants. The public health per natal and post-natal programmes must factor in intersex births. The dialogue on intersex must be approached with a human rights based approach and as well that will decrease stigma and discrimination associated with intersex persons.

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