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.