NATHANSON V.

MTELISO & ORS: ZIMBABWE HIGH COURT AFFIRMS HUMAN

RIGHTS OF TRANSGENDER

I. 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”.

II. 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].

III. 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 was 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 $.

IV. 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.”

- C.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 human
dignity of transgender, even though one may oppose and have different views in regard of 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 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 of 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 right to freedom of expression forms an important component
of humanity. The judgment has out rightly rejected any notion of homogeny and has encouraged
public dialogue about being more just, caring and tolerant towards the minorities. As a result this
judgment needs to be welcomed.