LGBT rights in Botswana | |
---|---|
Status | Legal since 2019 [1] |
Gender identity | Transgender people are allowed to change legal gender without surgery or hormone therapy |
Military | Allowed to serve |
Discrimination protections | Constitutional protections for sexual orientation |
Family rights | |
Recognition of relationships | No |
Adoption | No |
Lesbian, gay, bisexual, and transgender (LGBT) people in Botswana face legal issues not experienced by non-LGBT citizens. Both female and male same-sex sexual acts have been legal in Botswana since 11 June 2019 after a unanimous ruling by the High Court of Botswana. [1] [2] Despite an appeal by the government, the ruling was upheld by the Botswana Court of Appeal on 29 November 2021.
In recent years, the LGBT community has become more visible and accepted among Botswana's population. [3] The Botswana High Court has been at the forefront of LGBT rights in the country. In 2016, it ordered the Government to register Botswana's main LGBT organisation, LEGABIBO, and in 2017 it ruled that transgender people have a constitutional right to change their legal gender. [4] In 2019, it struck down colonial-era laws banning homosexuality, and ruled that "sex", as defined in Section 3 of the Botswana Constitution, should be "generously and purposively interpreted" to include sexual orientation. Employment discrimination on the basis of sexual orientation has been banned since 2010 in Botswana, making it one of the few African countries to have such protections for LGBT people.
LEGABIBO is the country's main LGBT advocacy group, and promotes awareness and acceptance of LGBT people.
Homosexuality and same-sex relations have been documented among various modern-day Botswana groups. In the 18th century, the Khoikhoi people recognised the terms koetsire, which refers to a man who is sexually receptive to another man, and soregus, which refers to mutual masturbation, usually among friends. Anal intercourse and sexual relations between women also occurred, though more rarely. The San people similarly did not regard homosexuality negatively, and various rock paintings depicting anal intercourse between men exist to this day. [5] The Tswana people, a Bantu ethnic group who make up the majority of Botswana's population, also have a local term to refer to homosexuality. The Tswana term matanyola, which literally translates to "anal sex", has long been used to refer to men who have sex with men. Prior to colonisation, Tswana society did not share the Western concepts of sexuality and gender. Many Tswana men would have sex with men, but also have wives. Homosexuality was not viewed as an antithesis to heterosexuality. Indeed, there was widespread liberty to engage in sexual activity with both men and women. [6] Traditional dikgosi (local Tswana chiefs) argue that homosexuality has always existed in Tswana society, and that such individuals should be respected. [7]
This relative openness and indifference towards homosexuality disappeared after Botswana (then known as the Bechuanaland Protectorate) became a British protectorate in the 19th century and began enforcing Victorian era laws and social policies.
Same-sex sexual acts became legal on 11 June 2019. Previously, sodomy, whether heterosexual or homosexual, was criminalised, punishable by up to seven years' imprisonment. The law criminalising such sexual activity applied to both men and women. Initially, its application was limited to men only (similar to other colonies of the British Empire), however, a Botswana court found this to be discriminatory and that the law should apply to women as well. [8]
Although same-sex sexual acts remained illegal until June 2019, [9] their prosecution was rare according to a 2004 publication. [10]
On 30 March 2016, the Gaborone City Council unanimously approved a motion calling for the repeal of Botswana's criminalisation of same-sex sexual acts. [11]
Letsweletse Motshidiemang, a student at the University of Botswana, was the lead plaintiff in a case to legalise homosexuality in Botswana. In November 2017, LeGaBiBo successfully applied to join the case as a friend of the court. The lawsuit sought to declare Section 164(a) and 167 of the Penal Code unconstitutional because "they interfere with his [the student's] fundamental right to liberty, freedom of privacy, as well as his right to use his body as he sees fit." However, the Deputy Attorney General argued that these sections were constitutional because they prohibited certain sexual acts which may be conducted by those of all sexual orientations, whether heterosexual or homosexual, and thus that these laws do not discriminate based on sexual orientation. Initially, the High Court was supposed to hear the case in March 2018. [12] [13] In February, however, the Deputy Attorney General asked for more time to respond to the plaintiffs' claims. As such, the High Court moved the hearing to 31 May 2018. [14] The case was then postponed again. [15] On 6 December 2018, the Court rescheduled the hearing for 14 March 2019. [16] [17] [18] LGBT activists presented their arguments at the hearing and were given a date of 11 June for the judgement. [19] [4]
On 11 June, the High Court decriminalized same-sex sexual activity by unanimously declaring that section 164 of Botswana's Penal Code was unconstitutional. [20] [1] The judgement was welcomed by the ruling Botswana Democratic Party (BDP). [21] Judge Michael Leburu further said that such laws "deserve a place in the museum or archives and not in the world". [22]
"Human dignity is harmed when minority groups are marginalized." ... "Sexual orientation is not a fashion statement. It is an important attribute of one's personality".
— Judge Michael Leburu
In July 2019, the Government of Botswana appealed the High Court ruling to the Botswana Court of Appeal. Attorney-General Abraham Keetshabe argued that the court was mistaken in its conclusion in overturning the sodomy law, saying, "I am of the view that the High Court erred in arriving at this conclusion and thus, I have decided to note an appeal with the Court of Appeal", without giving further details of the grounds for the appeal. LEGABIBO and LGBT activists slammed the appeal calling it disappointing and an affirmation of persistent homophobia and transphobia. [23] [24] [25] The appeal was unanimously rejected on 29 November 2021, with retiring Court of Appeal president Ian Kirby writing for the court that laws criminalizing same-sex relations "have outlived their usefulness, and serve only to incentivise law enforcement agents to become key-hole peepers and intruders into the private space of citizens". [26]
Same-sex couples have no legal recognition, whether in the form of marriage or civil unions.
The Employment Act 1982 (Tswana : Molao wa Thapo 1982) has prohibited employment discrimination on the basis of sexual orientation since 2010. [27] [28]
In June 2019, the High Court of Botswana ruled that "sex", as defined in Section 3 of the Botswana Constitution, should be "generously and purposively interpreted" to include "sexual orientation". Carmel Rickard, legal columnist at the University of Cape Town, writing for the African Legal Information Institute, said, "The impact of this finding is significant and could well mean that the local LGBTI will have an even stronger, constitutionally-based argument for any further challenge to discrimination. It also has the effect that, thanks to judicial interpretation, Botswana's constitution now joins that of South Africa in outlawing discrimination based on sexual orientation." [29]
"On the basis of the formulated rules of constitutional construction or interpretation, I have no qualms whatsoever in determining that the word 'sex' in Section 3 is wide enough to include and capture 'sexual orientation', as I hereby determine."
— Judge Michael Leburu
In September 2017, the Botswana High Court ruled that the refusal of the Registrar of National Registration to change a transgender man's gender marker was "unreasonable and violated his constitutional rights to dignity, privacy, freedom of expression, equal protection of the law, freedom from discrimination and freedom from inhumane and degrading treatment". LGBT activists celebrated the ruling, describing it as a great victory. [30] [31] At first, the Botswana Government announced it would appeal the ruling, but decided against it in December, supplying the trans man with a new identity document that reflects his gender identity. [32]
A similar case, where a transgender woman sought to change her gender marker to female, was heard in December 2017. The High Court ruled that the Government must recognise her gender identity. [33] She dedicated her victory to "every single trans diverse person in Botswana".
Homosexuality has typically been a taboo subject in Botswana, and has been historically seen as a "Western disease" and "un-African", [10] though the early 21st century has seen major advances in the societal perceptions of LGBT people. [13]
In February 2011, the Deputy Speaker of the Botswana National Assembly, Pono Moatlhodi, responded to a proposal to provide condoms to prison inmates engaging in same-sex sexual acts, as a measure to fight HIV/AIDS. Moatlhodi said that if he had the power, he would have those who practice homosexuality killed. Moatlhodi further said that inmates should learn that by having chosen to break the law, they were imprisoned and thus were responsible for starving themselves of sex. [34]
In 2010 and 2011, former Botswana President Festus Mogae spoke out against sexual discrimination, saying prejudice was hindering efforts to fight HIV in a country where one in four adults had the disease. "We do not want to discriminate. Our HIV message applies to everybody. If we are fighting stigma associated with sex, let's apply it to sexual discrimination in general." He told the British Broadcasting Corporation (BBC) that during his 10 years in office, he had instructed police not to arrest or harass gay people. "I could not change the law because that would be unnecessarily stirring up a hornet's nest. I was not willing to lose an election on behalf of the gays. The majority of our people are still opposed [to homosexuality] so I must convince them first before changing the law unilaterally." [35]
The U.S. Department of State's 2011 Human Rights Report found that "[t]he country has no law explicitly criminalizing consensual same-sex sexual activity. However, what the law describes as 'unnatural acts' are criminalized, and there is widespread belief this is directed toward gay, lesbian, bisexual, and transgender persons. Police did not target same-sex activity, and there were no reports of violence against persons based on their sexual orientation or gender identity during the year." [36]
In September 2016, responding to the deportation of American anti-gay pastor Steven Anderson from Botswana, President Ian Khama said that "we don't want hate speech in this country. Let him do it in his own country." [37]
In November 2018, President Mokgweetsi Masisi, speaking to a crowd, said: [38]
There are also many people of same sex relationships in this country, who have been violated and have also suffered in silence for fear of being discriminated. Just like other citizens, they deserve to have their rights protected.
On 11 June 2019, the ruling Botswana Democratic Party (BDP) welcomed the judgement of the High Court that decriminalised homosexuality. [21]
Botswana's primary LGBT rights organization is LEGABIBO. The Government has twice rejected its application to be registered; therefore, the group's ability to raise funds was limited. The registrar said that it could not register any group that "is likely to be used for any unlawful purpose or any purpose prejudicial to or incompatible with peace, welfare or good order in Botswana". [39] In 2013, fourteen members of LeGaBiBo engaged Unity Dow to sue the Botswana Government to force it to register the organisation. [40] The High Court ruled in November 2014 that LEGABIBO must be registered. [41] The Government appealed the ruling and on 16 March 2016, the Botswana Court of Appeal unanimously ruled that the refusal to register LEGABIBO was unlawful. [42] [43] LEGABIBO has since managed to open its main office in Gaborone, followed by Drop In Centres (DIC) in Francistown, Kasane, Selebi Phikwe and Letlhakane. [44]
A 2016 Afrobarometer opinion poll found that 43% of respondents would welcome or would not be bothered by having 'a homosexual neighbour,' well above the average for the countries surveyed. [45]
Studies conducted by the Afrobarometer have found that young Batswana are more tolerant of gays than the older generation. [13]
Same-sex sexual activity legal | (Since 2019) |
Equal age of consent (18) | (Since 2019) |
Anti-discrimination laws in employment only | (Since 2010) |
Anti-discrimination laws in the provision of goods and services | (Since 2019) [29] |
Anti-discrimination laws in all other areas (Incl. indirect discrimination, hate speech) | (Since 2019) [29] |
Same-sex marriages | |
Recognition of same-sex couples | |
Stepchild adoption by same-sex couples | |
Joint adoption by same-sex couples | |
LGBT allowed to serve openly in the military | (Since 2010) |
Right to change legal gender | (Since 2017) |
Access to IVF for lesbians | |
Commercial surrogacy for gay male couples | /Botswana currently does not have a law that regulates surrogacy for all sexual orientations. [46] [47] |
MSMs allowed to donate blood | [48] [49] |
Lesbian, gay, bisexual, and transgender (LGBT) rights in Fiji have evolved rapidly over the years, however, LGBT people may still face legal challenges not experienced by non-LGBT residents. In 1997, Fiji became the second country in the world after South Africa to explicitly protect against discrimination based on sexual orientation in its Constitution. In 2009, the Constitution was abolished. The new Constitution, promulgated in September 2013, bans discrimination based on sexual orientation and gender identity or expression. However, same-sex marriage remains banned in Fiji and reports of societal discrimination and bullying are not uncommon.
Lesbian, gay, bisexual, and transgender (LGBT) people in South Africa have the same legal rights as non-LGBT people. South Africa has a complex and diverse history regarding the human rights of LGBT people. The legal and social status of between 400,000–over 2 million lesbian, gay, bisexual, transgender and intersex South Africans has been influenced by a combination of traditional South African morals, colonialism, and the lingering effects of apartheid and the human rights movement that contributed to its abolition.
Lesbian, gay, bisexual, and transgender (LGBT) people in Kenya face significant challenges not experienced by non-LGBT residents. Sodomy is a felony per Section 162 of the Kenyan Penal Code, punishable by 21 years' imprisonment, and any sexual practices are a felony under section 165 of the same statute, punishable by 5 years' imprisonment. On 24 May 2019, the High Court of Kenya refused an order to declare sections 162 and 165 unconstitutional. The state does not recognise any relationships between persons of the same sex; same-sex marriage is banned under the Kenyan Constitution since 2010. There are no explicit protections against discrimination on the basis of sexual orientation and gender identity. Adoption is restricted to heterosexual couples only.
Lesbian, gay, bisexual, and transgender (LGBT) people in Trinidad and Tobago face legal challenges not experienced by non-LGBT residents. Households headed by same-sex couples are not eligible for the same rights and benefits as that of opposite-sex couples.
Lesbian, gay, bisexual, and transgender (LGBT) people in Malaysia face severe challenges not experienced by non-LGBT residents. Sodomy is a crime in the country, with laws strictly enforced. Extrajudicial murders of LGBT people have also occurred in the country. There are no Malaysian laws that protect the LGBT community against discrimination and hate crimes. As such, the LGBT demographic in the country are hard to ascertain due to widespread fears from being ostracised and prosecuted, including violence.
Lesbian, gay, bisexual, and transgender (LGBT) people in Guyana face legal and societal challenges not experienced by non-LGBT residents. Guyana is the only country in South America, and the only mainland country in the Americas, where homosexual acts, including anal sex and oral sex, are illegal. Cross-dressing was illegal until November 2018, when the statute was struck down by the Caribbean Court of Justice, the court of last resort of Guyana.
Lesbian, gay, bisexual, and transgender (LGBT) people in Eswatini have limited legal rights. According to Rock of Hope, a Swati LGBT advocacy group, "there is no legislation recognising LGBTIs or protecting the right to a non-heterosexual orientation and gender identity and as a result [LGBT people] cannot be open about their orientation or gender identity for fear of rejection and discrimination". Homosexuality is illegal in Eswatini, though this law is in practice unenforced. According to the 2021 Human Rights Practices Report from the US Department of State, "there has never been an arrest or prosecution for consensual same-sex conduct."
Lesbian, gay, bisexual, and transgender (LGBT) people in Namibia have limited legal protections. Sexual contact between men is criminalised within Namibia, although this law is generally unenforced. Discrimination based on sexual orientation is banned in Namibia but not for gender identity.
National Coalition for Gay and Lesbian Equality and Another v Minister of Justice and Others is a decision of the Constitutional Court of South Africa which struck down the laws prohibiting consensual sexual activities between men. Basing its decision on the Bill of Rights in the Constitution – and in particular its explicit prohibition of discrimination based on sexual orientation – the court unanimously ruled that the crime of sodomy, as well as various other related provisions of the criminal law, were unconstitutional and therefore invalid.
Lesbian, gay, bisexual, and transgender (LGBT) people in Hong Kong may face legal challenges not experienced by non-LGBT residents.
Lesbian, gay, bisexual, and transgender (LGBT) persons in Belize face legal challenges not experienced by non-LGBT citizens, although attitudes have been changing in recent years. Same-sex sexual activity was decriminalized in Belize in 2016, when the Supreme Court declared Belize's anti-sodomy law unconstitutional. Belize's constitution prohibits discrimination on the basis of sex, which Belizean courts have interpreted to include sexual orientation.
Lesbian, gay, bisexual, and transgender (LGBT) rights in Mauritius have expanded in the 21st century, although LGBT Mauritians may still face legal difficulties not experienced by non-LGBT residents. Prior to 2023, sodomy was criminalized by Section 250 of the Criminal Code. However, Mauritius fully decriminalized homosexuality in October 2023. Although same-sex marriage is not recognized in Mauritius, LGBT people are broadly protected from discrimination in areas such as employment and the provision of goods and services, making it one of the few African countries to have such protections for LGBT people. The Constitution of Mauritius guarantees the right of individuals to a private life.
Lesbian, gay, bisexual, and transgender (LGBT) people in the U.S. state of Indiana enjoy most of the same rights as non-LGBT people. Same-sex marriage has been legal in Indiana since October 6, 2014, when the U.S. Supreme Court refused to consider an appeal in the case of Baskin v. Bogan.
Lesbian, gay, bisexual, and transgender (LGBT) persons in the U.S. state of Nebraska may face some legal challenges not experienced by non-LGBT residents. Same-sex sexual activity is legal in Nebraska, and same-sex marriage has been recognized since June 2015 as a result of Obergefell v. Hodges. The state prohibits discrimination on account of sexual orientation and gender identity in employment and housing following the U.S. Supreme Court's ruling in Bostock v. Clayton County and a subsequent decision of the Nebraska Equal Opportunity Commission. In addition, the state's largest city, Omaha, has enacted protections in public accommodations.
Lesbian, gay, bisexual and transgender (LGBT) people in the U.S. state of Idaho face some legal challenges not experienced by non-LGBT people. Same-sex sexual activity is legal in Idaho, and same-sex marriage has been legal in the state since October 2014. State statutes do not address discrimination based on sexual orientation and gender identity; however, the U.S. Supreme Court's ruling in Bostock v. Clayton County established that employment discrimination against LGBT people is illegal under federal law. A number of cities and counties provide further protections, namely in housing and public accommodations. A 2019 Public Religion Research Institute opinion poll showed that 71% of Idahoans supported anti-discrimination legislation protecting LGBT people, and a 2016 survey by the same pollster found majority support for same-sex marriage.
Lesbian, gay, bisexual, and transgender (LGBT) persons in the U.S. state of Oklahoma may face some legal challenges not experienced by non-LGBT residents. Same-sex sexual activity is legal in Oklahoma as a result of the U.S. Supreme Court decision in Lawrence v. Texas, although the state legislature has not repealed its sodomy laws. Both same-sex marriage and adoption by same-sex couples have been permitted since October 2014. State statutes do not prohibit discrimination based on sexual orientation or gender identity; however, the U.S. Supreme Court's ruling in Bostock v. Clayton County established that employment discrimination against LGBT people is illegal. This practice may still continue, as Oklahoma is an at-will employment state and it is still legal to fire an employee without requiring the employer to disclose any reason.
This is a timeline of notable events in the history of non-heterosexual conforming people of African ancestry, who may identify as LGBTIQGNC, men who have sex with men, or related culturally specific identities. This timeline includes events both in Africa, the Americas and Europe and in the global African diaspora, as the histories are very deeply linked.
Caine Youngman is a human rights activist and member of the LGBT rights movement in Botswana. He first gained international attention in 2011 when he tried to overturn the country's ban on same-sex relations. He worked for human rights group LEGABIBO until December 2022 and served on the board of Pan Africa ILGA, the regional chapter of the International Lesbian, Gay, Bisexual, Trans and Intersex Association.
This is a list of notable events in the history of LGBT rights that took place in the year 2021.
Botswana does not recognize same-sex marriages or civil unions. The Marriage Act does not recognise same-sex marriage.
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