Zimbabwean Court Upholds Transgender Rights

Photo: ILO
The rainbow flag, commonly the gay pride flag and LGBT pride flag, is a symbol of lesbian, gay, bisexual, and transgender pride (file photo).
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Transgender activist Ricky Nathanson, who sought asylum in the United States after being brutalised by the Zimbabwean police, may have won her damages claim but she cannot return home.

In a month that saw Zimbabwean lawyers take to the streets to protest publicly against police brutality, a long-awaited judgment was finally handed down.

Ricky Nathanson's damages claim for unlawful arrest, unlawful detention and emotional distress was heard in the Bulawayo High Court by Judge Francis Bere two years ago. Bere has since been elevated to the Supreme Court.

"This case raises issues regarding minority rights in this country and one hopes this judgment, in a way, will help spark a frank national conversation of these issues, which we appear to have been shy or less enthusiastic to openly discuss," said Bere.

Citing Indian case law, which recognises a "third gender" which must not be discriminated against, he said he had derived "maximum inspiration" from this and Zimbabwe's own anti-discrimination Bill of Rights and Constitution.

Transgender people, he said, are not that way because of the stubbornness of adventurism, but because of who they were, "their self-identification being a mismatch with their assigned sex at birth".

'Military style'

Nathanson's claim was against Farai Mteliso, a prominent member of Zanu-PF's youth league, the office in charge of the Bulawayo Central Police Station and the commissioner of police. It related to events that began at the local Palace Hotel in January 2014.

Mteliso demanded money from Nathanson to buy whiskey - "a bribe" - saying he did not like what she was doing. When she refused, he made a telephone call saying there was a man "walking around in a women's dress" who needs to be "fixed".

Six "riot policemen" arrived and arrested her in "typical military style". Nathanson was detained for three days, during which she was taken to hospital twice for "gender verification".

On 18 January, she was taken to court and charged with "criminal nuisance", her crime being that she had used a women's restroom. It took almost two years for the criminal charges to be withdrawn.

Her evidence in her civil claim was "sordid", the judge said. She was taken to a private room by five police officers who ordered her to lower her garments for them to verify her gender.

Nathanson said the five officers crowned off their degrading and dehumanising invasion by fidgeting and laughing at her because of what they had seen. "They literally jeered at her and made public comments about their discovery of the plaintiff's genitalia," the judge said.

Mocked and paraded

While detained, Nathanson was kept in a dark cell that smelled of human waste. She was not allowed to wear shoes and the blanket she was given was infested with lice.

Each time police officers changed shift, they would mock Nathanson, asking if she was a man or a woman, and take her out of the cell to parade her.

The judge said Nathanson stuck to her story under cross-examination, when it was suggested to her that the police were merely doing their job by verifying her gender to determine whether or not she could be charged with the toilet incident. It was all part of the investigation, it was said.

"There is no law preventing me from using the toilet of my choice," she countered. "I admitted it."

Nathanson turned to clinical psychologist Phillip Moses to manage her post-traumatic stress disorder three years after the event. He told the court that she was in tears and "sobbing".

Being forced to undress in front of the police officers was one of the most traumatic and dehumanising experiences of her life. Media reports led to the collapse of Nathanson's modelling business and her relationship with her partner.

'Mandatory' verification

Mteliso and the other police officers involved did not testify. Mteliso didn't even oppose the application.

The defence called only one witness, Chief Inspector Enock Masimba, who, the judge noted, had not been involved with the arrest and detention of Nathanson and "had had the benefit of sitting in court" during her testimony.

He, too, said her arrest was lawful because there was a "reasonable suspicion that she had used a women's toilet". The subsequent gender verifications were "mandatory".

Bere rejected this version and ruled that Nathanson's arrest and detention were unlawful and actuated by "malice and spite ... And even if the arresting officers genuinely believed that by entering a female toilet, Nathanson was committing a criminal offence, one is left to wonder whether the police needed to use such a high-handed approach.

"Their conduct was tantamount to using a 16-pound hammer or a machine gun to crush an ant ... I have not the slightest doubt that the cumulative effect of her treatment whilst under police arrest speaks to serious violations for her constitutional rights."

'Cheap fodder'

He said the fact that no effort had been made to prosecute Nathanson led to the conclusion that she had not committed any recognisable offence. And yet through the conduct of the police, she was made "cheap fodder" by newspaper reporters who labelled her a "gay shemale".

"Transgender citizens are part of the Zimbabwean society. Their rights ought to be recognised like those of other citizens. Our Constitution does not provide for their discrimination. It is nothing but delusional thinking to wish away the rights of transgenders," said Bere.

On a practical note, he suggested, "it might be prudent to construct unisex toilets as an addition to the resting rooms in public places".

Bere awarded damages of Z$400 000, which is equivalent to about R16 000.

Nathanson, who now runs an HIV and Aids clinic in Washington in the United States, has not responded publicly to the ruling.

Continued harassment

In a recent interview aired on YouTube, the former Dunlop Tyre Zimbabwe executive said after she lodged her damages claim, the harassment continued.

"Cars would follow me around. My phone was bugged. In October last year, my house was broken into twice. The first time it was just trashed. The second time, I was attacked by four men who told me I was messing with the wrong people."

While in New York on business, she got a call from a colleague who said three men had come to the office asking where she was, because they wanted to question her. "I knew then that I could not go home."

Nathanson said she arrived in the US at the end of November 2018 and was granted asylum in February. "There is no chance of me ever going back to Zimbabwe," she said.

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