Community Health Legal and Parliamentary Affiars Opinions

Analysing controversial issue of gender re-assignment in Zimbabwe

By Rumbidzai Venge

At a fundamental level, a person’s sex is determined by his or her genes. Human beings are born with 46 chromosomes in 23 pairs, the X and Y chromosomes determine a person’s sex. Women carry 46 XX and men carry 46XY chromosomes. Upon birth, sex determination is crucial in assigning gender to a newborn.

This facilitates classification and integration into society. Sex, therefore, is limited to biological aspects and the anatomy of an individual’s reproductive systems. Gender, however, is not premised on biological aspects and is more to do with one’s socio-cultural role or personal identification based on internal awareness or belief systems. The World Health Organization’s Genomic resource centre goes further to state that:‘ gender typically described in terms of masculinity and femininity, is a social construction that varies across different cultures and over time’.

Where an individual’s biological assignment as man or woman differs from their gender role, that individual is termed to be transgender. Put simply if a person is born female but instead wishes to fulfill a male gender role, and feels their sex and gender are mismatched. This condition is defined clinically as ‘gender dysphoria ’. Most people who suffer from this condition seek to have their genitalia surgically changed and reassigned to reflect their preferred gender and this necessitates a change of legal status.

It becomes imperative for legal framework to accommodate recognition of transgender people, facilitate for recognition under reassigned gender and has an implication on marriage laws, how is the union of a transgender male to female get married to a man viewed by the law?

The Republic of Zimbabwe is a creature of statute and is governed by the Constitution. Transgender persons are not legally recognized in Zimbabwe. There are no provisions speaking to their existence and as it follows no laws around their integration into society or elaboration of any rights they may have. The Law is explicit on forbidding same-sex marriage under section 78 of the Constitution. The nation’s policy on the issue has been seen to lean on the side of conservatism and criminalises all homosexuality and sexual deviancies. Sodomy is classified as a criminal offence under part III of the Criminal Law (codification and reform) Act, penalties including payment of a fine and up to ten years imprisonment. All conduct that is perceived as potentially homosexual is punishable, whether done consensually or not even when done in private.

Whilst section 56 of the Constitution offers extensive protection against discrimination of any kind and equal protection to all, it does not speak directly to transgender rights. There are no specific provisions available for transgender persons to change their sex or gender markers on their birth certificates. No guiding provisions on gender reassignment surgeries for candidates seeking to have procedures done or how the person is to be recognized in their new gender exist in any legislation as it stands. Factors regulating how the person is to be issued with new identification documents as the process usually results in the trans-person changing their name to reflect their preferred ‘new identity’. In some instances one will simply want to change their gender without seeking surgical reassignment, how do we regulate these pre-operative transgender persons who for all intents and purposes remain the same in their appearance, despite their gender dysphoria. This will naturally cause complications that desperately require legal intervention.

The potential of transgender persons suffering human rights violations including harassment, violence, and ostracization is high where the law is deafeningly silent on such issues, the proverbial tumbleweed will continue to blow across the legal landscape.

Zimbabwe has in stark contrast with its counterparts in the region South Africa, Botswana, Namibia and Mozambique which have recently enacted provisions in their laws offering LGBTQ rights protection, remained unmoved, it remains a fait accompli, an accomplished fact that Zimbabwe is firmly rooted in its stance, the issue of gay rights or otherwise is not a priority as it is not in tandem with the Constitution, established beliefs and African practices.

There is however an unspoken acknowledgment of the presence of LGBTQ persons in our society with many of them living secret lives, afraid to openly identify themselves, opting to live and seek treatment outside of the jurisdiction. Until the letter of the law is changed to recognize the rights of transgender persons, the status quo will prevail, it is incumbent upon affected persons to lobby and advocate for the amendment of the law in this stead.

About the author

Byron Adonis Mutingwende