By Raj Krishna and Alivya Sahay
Introduction
“Gender identity refers to each person’s deeply felt internal and individual experience of gender, which may or may not correspond with the sex assigned at birth, including the personal sense of the body which may involve a freely chosen, modification of bodily appearance or functions by medical, surgical or other means and other expressions of gender, including dress, speech, and mannerisms. Gender identity, therefore, refers to an individual‘s self-identification as a man, woman, transgender or other identified category.” – Justice Radhakrishnan
On 14th November 2019, the Zimbabwe High Court in the case of Nathanson v Mteliso & Ors delivered a landmark judgment. Justice Bere vide his ruling awarded a compensation of 400,000 $ to a transgender woman named Ricky Nathanson against whom the Zimbabwe police framed charges of criminal nuisance [Section 46 of the Criminal Law (Codification and Reform) Act deals with Criminal Nuisance]. However, it is interesting to note that Justice Bere while delivering this verdict has relied upon the cases of Navtej Singh Johar v. Union of India and National Legal Services Authority v. Union of India [Both delivered by the Supreme Court of India] because both of these rulings according to the learned judge has an “international flavor”.
Background of the Case
On 16th January 2014, the plaintiff was at the Palace Hotel in Bulawayo where she was supposed to meet a client for whom she had done some tax returns. However, when she was in the bar of the hotel, a local politician asked her for some extortion money to which she refused. As a result, the politician called the police [Paragraphs 4-8].
After some time six-armed riot police officers arrived at the scene and arrested her. The officials then bundled the plaintiff on to an open truck and took her to the police headquarters in a typical military-style wherein she was charged with the offence of criminal nuisance. The police officers then coerced the plaintiff to undress her in their presence in order to determine her gender of orientation. The atrocity did not end here as post this she was exposed to slurs, affronts and corrupting treatment and later taken to two distinct emergency clinics for gender verification. It is further pertinent to note that the police did not take the consent of the plaintiff for conducting such crucial examinations [Paragraphs 9-16].
On 18th January 2014, the plaintiff was then taken to court and remanded out of custody on charges of criminal nuisance [Factual allegations being that she had entered a female toilet while she was a man]. Eventually, on 4th November 2015, the charges against the plaintiff were terminated with a refusal of further remand by the magistrate. The Magistrate passed this order on the grounds that there did not seem to be a clear cut offence disclosed on the facts cognizable under s 46 of the Criminal Law Codification and Reform Act as read with the third schedule. Since then this case has never been resuscitated. As a result, the plaintiff filed a suit before the Honorable High Court [Paragraphs 17-19].
Judgment and its Analysis
After going through the submissions of both the sides the Court, in this case, delivered the judgment in favor of the plaintiff. Justice Bere found the official conduct of police altogether unsatisfactory, unreasonable and harsh. The learned judge, in this case, observed that under the provisions of the Zimbabwean Constitution [Sections 50, 51 and 53] this sort of barbaric and debasing treatment as experienced by Nathanson is strictly prohibited because it violates her fundamental rights as guaranteed by the Constitution. The plaintiff, in this case, did not commit any offence in the eyes of law [Section 46 of the CLCR Act when read with the third schedule]. As a result, her arrest and prosecution were illegal and malicious.
The court then opined that the transgender citizens form an imperative part of the Zimbabwean society. As a result, their basic human rights should be regarded at the same par to that of other citizens. Further, the Zimbabwean Constitution does not provide for any discrimination between its citizens. As a result, the High Court reaffirmed the illegal detention and malicious prosecution had taken place against the plaintiff and awarded her compensation of 400000 $.
Way Forward
“The emphasis on the unique being of an individual is the salt of his/her life. Denial of self-expression is inviting death. Irreplaceability of individuality and identity is grant of respect to self. This realization is one’s signature and self-determined design. One defines oneself. That is the glorious form of individuality.”- J.I. Dipak Misra
With this ruling, the Zimbabwe High Court has joined other Southern African courts which in the recent times have affirmed the rights of transgender people. In the year 2017, the Botswana High Court observed that it’s the duty of both state and the society to respect the right to the human dignity of transgender, even though one may oppose and have different views in regard to the applicant’s gender identity. The Botswana High Court further observed that there are several elements to affirming one’s gender [It also includes changing of name, changing of pronouns etc…]. The usage of the correct pronoun constitutes an important part of respecting a person’s identity. As a result, it is quite remarkable to note that throughout his judgment Justice Bere has purposefully and intentionally affirmed Nathanson’s gender by using her preferred pronouns of “she” and “her”.
The Zimbabwe High Court verdict is iconic because vide this ruling the court has contributed to the ongoing public discourse about the use of public bathrooms by transgender persons. The court, in this case, held that the usage of a bathroom of your choice as a transgender person is not an offence in Zimbabwe. Further to prevent any such mishaps in the future the court also suggested constructing unisex toilets as an addition to the resting rooms in public places. The High Court, in this case, has also reaffirmed the legal responsibilities and obligations of the police officials while dealing with the civilians. The court has observed that while interacting with the civilians it’s the duty of the police officials to ensure that every individual is entitled to fair treatment, due process of law and is not arbitrarily arrested or detained.
Thus it can be said that the judgment of the Zimbabwe High Court has made a significant contribution to the discourse that the right to freedom of expression forms an important component of humanity. The judgment has outrightly rejected any notion of homogeny and has encouraged a public dialogue about being more just, caring and tolerant towards the minorities. As a result, this judgment needs to be welcomed.
[The authors are fifth-year and third-year students of Chanakya National Law University, Patna.]
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