Opinion Piece first published on 26 November 2019 on mg.co.za
In 2014, Ricky Nathanson was arrested and charged with criminal nuisance after she used a toilet for women. In a progressive judgment with far-reaching implications, the Zimbabwean high court found that transgender people have the same rights as all citizens.
Last week activists around the world came together on the Transgender Day of Remembrance to honour the memory of the transgender people whose lives have been lost in acts of anti-transgender violence. In the same week, Justice Francis Bere of the high court in Bulawayo delivered a scathing judgment against the Zimbabwean police that was a victory for the advancement of the rights of transgender people and Zimbabweans more broadly.
The decision came in response to the unlawful arrest, detention and malicious prosecution of Ricky Nathanson, a transgender woman from Bulawayo.
The court affirmed the rights and freedoms of transgender people and expressed its hope that its decision will contribute to the recognition and tolerance of minority rights in the country. This is also an important step for substantial justice, due process of the law and the fight against police brutality, arbitrary arrest and impunity in Zimbabwe.
More than five years earlier, in January 2014, Nathanson met a client at a local hotel in Bulawayo to assist them with their tax returns. After refusing an extortion for money by a local politician, six armed riot police officers arrived and arrested her. The officers bundled Nathanson on to an open truck and took her to the police station in typical military style. There she was charged with criminal nuisance for using a female toilet, when “she was actually male”.
At the police station, she was forced to undress in front of five police officers so that they could determine whether she was male or female. She was subjected to slurs, insults and degrading treatment and later taken to two different hospitals for “gender verification”. The police did not seek her consent to conduct the examinations. She was meaningfully advised of the reasons for her arrest only on the third day of her detention. After spending several nights in custody in deplorable conditions, the magistrate refused to prosecute the case.
Justice Bere found that the conduct of the police was entirely unacceptable, irrational and inhumane. He said that even if the police had genuinely and reasonably believed that she had committed an offence, their “conduct was tantamount to using a 16-pound hammer or machine gun to crush an ant”. He said that “the conduct could not possibly have been justified by any fair-minded person”. Justice Bere said that the police must satisfy themselves that an offence was committed before arresting someone. Police do not arrest in order to investigate whether an offence was committed.
Many aspects of the decision will have far-reaching implications for the promotion and protection of human rights in Zimbabwe and beyond — at least three findings by the court contribute to the jurisprudence on the need for recognition and social inclusion of transgender persons.
The high court affirmed that human rights apply to all people, and that transgender people are part of society and are equally entitled to have their constitutional rights protected and respected. The court said that “transgender citizens are part of Zimbabwean society. Their rights ought to be recognised like those of other citizens. Our constitution does not provide for their discrimination. It is nothing but delusional thinking to wish away the rights of transgender” people.
The Zimbabwe high court joined other Southern African courts, which have in recent years affirmed the rights of transgender people. In 2017, the Botswana high court also emphasised that the “state [and society] has a duty to respect and uphold the individual right to human dignity [of transgender persons] despite opposing and different views it might hold with regards to the applicant’s gender identity”.
There are several elements to affirming one’s gender. For example, social gender affirmation refers to steps taken by the transgender person themselves to reflect their gender towards others. These can include changing their name, changing their pronouns (for example, to “he”, “she”, or “they”) and so on. The use of the correct pronoun of a transgender person by others is an important part of respecting a person’s identity. In this sense, it is quite notable that throughout his judgment Justice Bere purposefully and intentionally affirmed Nathanson’s gender by using her preferred pronouns of “she” and “her”.
The high court contributed to the ongoing public discourse about the use of public bathrooms by transgender persons. The court said that the use of a bathroom of your choice as a transgender person is not an offence in Zimbabwe. To prevent similar incidents of occurring in the future and to accommodate expression and individuality, the court said that “It might be prudent to construct unisex toilets as an addition to the resting rooms in public places.”
Importantly, the high court reaffirmed the legal responsibilities and obligations placed on police officials when interacting and engaging with civilians. These legal obligations include that all persons have a right not to be harassed or abused and are fully entitled to fair treatment, due process of the law and to be free from arbitrary arrest and detention.
The high court observed that, “The legislature in its wisdom put a cap on the arrest of suspects and the police officers are not expected to hysterically respond to calls of the arrest of suspects but satisfy themselves on reasonable grounds that the suspect has committed an offence before arresting such an individual.”
The court further said that, “Basic police procedure demands that before one is arrested, he/she must be advised of the reasons for his/her arrest. Police officers are not given an open cheque as it were to blindly arrest a suspect, for if this were to be allowed, many individuals would be left cruelly vulnerable.” These are significant observations by the high court, particularly in light of ongoing police brutality and arbitrary arrests by police and will support the fight against impunity.
The judgment makes a significant contribution to the discourse that being transgender, and having the ability to express individuality in ways that one feels comfortable with, is a normal and important component of humanity. The decision outrightly rejects any notion of homogeny and instead encourages public dialogue about being more just, caring and tolerant towards difference and minorities.
Tashwill Esterhuizen is an LGBT and sex workers rights lawyer at the Southern Africa Litigation Centre, who legally assisted in the case. Ricky Nathanson was the plaintiff in the case.