The lawyer of a transgender school going child at Ledumang Secondary School on the outskirts of Gaborone, who was prevented from writing end of term exams because they were wearing trousers says the judgement delivered by the courts was extremely confusing.
The court ordered that the child's mother apply for permission to be exempted from the dress code.
“The court dismissed application for interim order. In the interim order we had argued that the child should be allowed to write exams in trousers pending the finalization of the main application questioning legality of this suspension,” said Gosesgo Lekgowa, Managing Partner for Dinokopila Lekgowa Attorneys, Notaries, Conveyancers and Legal Consultants.
He said, “Court says child can apply for permission to be exempted from dress code. It is implicitly suggesting there is no case. Child has no right to wear trousers. We did not know we had to ask for permission. This case has left us puzzled. Court as the upper guardian should have protected the child. It has failed to do that.”
The case was brought before court by the mother because the child, is a minor of 17 years old and has no legal capacity to bring case before court. Her mother related in affidavits that her child grew up wearing any outfit given to her especially when she was a toddler, until when she was doing standard 5 when she would wear girlish outfits being trousers and tops only.
She was admitted to Ledumang Senior School in 2016 and her mother bought both school uniform being the skirt and trouser for her, but she only wore the skirt the first day. It was allegedly very awkward because when she was dropped off at school she had isolated herself from the rest of other students. The following day she went back to wearing her trouser uniform.
“I was called to a meeting by the guidance teachers Ms. Motsumi and Ms. Mogopodi just in first term concerning her dress code. I explained to them everything that we even went to church in order to make her change the way she dresses. I was called every now and then still on the same issue but her explanation to them was that she is not comfortable in her skirts, she feels naked, it makes her to skip food at school, and she cannot walk around school during tea and lunch break,” said the mother, whose name is being withheld to protect the identity of the child.
She revealed, “Towards the end of year in October 2016, her clothes were stolen from the laundry line and I went to report at school. I was actually looking for her Head of Department (HOD) for Motloutse House and he was not available. I was asked to see any teacher in same House and I luckily bumped into Mr Luza just by the office entrance and I told him about Mitchell’s situation.”
Her mother was politely asked to buy her skirt and when she responded that she was not working she was told, “we don’t go around taking statistics of parents who are not working, I should buy her a skirt.”
The child is an athlete who represents the school in the track competitions. During one incident on the 2nd of March 2017, the child lost her skirt, shirt and tie at school grounds but was beaten 3 strokes for not wearing her skirt though it was reported stolen on the school grounds.
The child has been booked for appointment with a Psychologist to determine what her condition is and is suspended from going back to school without a skirt.
Cindy Kelemi, Executive Director for Botswana Network on Ethics Law and HIV/AIDS(BONELA), said “The child was barred from writing end of term examinations because they were expected to wear a skirt in summer whereas they wore trousers because they identified themselves as transgender.”
She said, “We had to take case to court on urgency basis. The court has however now instructed BONELA to apply to Permanent Secretary of Ministry of Education and Skills Development for exemption. This is not the first such case. School is refusing to allow child to write exams.”
Section 164 of Botswana’s Penal Code lists homosexual sexual acts as offences against Morality. It says: “Any person who… has carnal knowledge of any person against the order of nature” or “permits any other person to have carnal knowledge of him or her against the order of nature is guilty of an offence and is liable to imprisonment for a term not exceeding seven years.”
But Botswana’s Employment Act (Amendment) 2010 prohibits employment contract termination on the grounds of sexual orientation.