Protecting transgender women within the African human rights system through an inclusive reading of the Maputo Protocol and the proposed Southern African Development Community Gender- Based Violence Model Law

Abstract

Under Article 1 of the Maputo Protocol “women” are defined as “persons of the female gender”. Notwithstanding this definition, transgender women, persons whose gender is female but who were assigned male at birth, are yet to be recognised or protected under the Protocol. On the contrary, on the African continent, transgender women are some of the most vulnerable persons in society. Due to their frequent misidentification as homosexual men, and widespread criminalisation of homosexuality, these women are regularly discriminated against and victims of stigma and violence. Furthermore, because of the denial of their gender identities, these women are deprived of their legal recognition and subsequent protection of their human rights. This article considers discrimination against transgender women and contrasts it with the provisions of the Maputo Protocol. This article utilises the teleological approach to treaty interpretation, together with postmodern intersectional feminist legal theory and queer legal theory as well as fundamental principles of international human rights law such as dignity, equality and non-discrimination. Finally, the article considers the recognition and protection of transgender women in light of the proposed SADC GBV Model Law.