In Botswana, lesbian, transgender, bisexual, and intersex (LBTI) people continue facing discrimination and stigma despite several legal developments over the last decade.
In June 2019, however, the High Court of Botswana read down Section 164 of Botswana’s Penal Code and decriminalised consensual same-sex relations in a landmark judgment. The Court stated in a unanimous decision that legislation was discriminatory, unconstitutional, and against the public interest. In 2017, two transgender individuals successfully challenged in Court the Birth and Death Act that prohibits changing sex in ID unless wrongly put. However, no policy or law change followed as a result of the legal challenge.
There are no policies or laws that would explicitly recognise or protect the rights of intersex people. Botswana is also one of 6 African states that voted in favour of the 2017 UN resolution condemning countries that use the death penalty as a punishment for consensual same-sex relations.
In March 2019, a few months before this judgment, Botswana received its very first SOGIESC-focused recommendation from the CEDAW Committee. The Committee was concerned about the lack of equal access to free antiretroviral treatment for LBTI people, amongst other disadvantaged groups, and it was recommended that access to such treatment and other public services may be made easier.
The List of Issues contained a question on what measures were put within the Employment Amendment Act of 2010 to ensure that LBTI people’s access to employment can be promoted. This question, however, does not find an answer within the Committee’s observations.
Three civil society submissions by Black Queer DocX and LEGABIBO, BOCONGO, and Sisonke and BONELA reported on issues such as criminalisation of same-sex relations, gender identity recognition, lack of legal policy framework for the protection of intersex children, but none of these were brought up by the Committee.
Other non-SOGIESC recommendations that can be read to include LBT women were on access to services around gender-based violence, including shelters, better enforcement of the law; and anti-trafficking measures, including the provision of counselling and legal services, accessible services, and alternate job opportunities for victims of trafficking.
The State party report was submitted in 2017 and contained no LBTI specific information. However, the judiciary in Botswana has been in favour of LBTI rights and inclusion. In November 2019, the Botswana Court of Appeal upheld a lower court decision to decriminalise consensual same-sex conduct. The court found that the Penal Code provisions outlawing â€œcarnal knowledge of any person against the order of nature” were unconstitutional as they violate the right to privacy, the right to liberty, security of person, and equal protection under the law, and the right to freedom from discrimination. Judges on the Botswana high court had in 2019 said that these archaic laws belong ‘in the museum or the archives.’ In 2021, the aforementioned decision was upheld. The government had appealed a 2019 ruling that criminalising homosexuality was unconstitutional.