BULAWAYO – A transgender man who identifies as female has been awarded ZWL$400,000 damages by the High Court after he was arrested and subjected to a forced anatomical examination “in the most crude and naked manner by adventurous members of the police.”
Bulawayo hairdresser Ricky Eugene Nathanson, 63, was arrested after allegedly using the women’s toilet in a bar on January 16, 2014.
He was acquitted in 2017 on charges of criminal nuisance after Bulawayo magistrate Abednico Ndebele ruled that it was not a crime for a man to enter a women’s toilet, or vice versa.
In a judgement made available on Thursday, former Bulawayo High Court judge Francis Bere – now on the Supreme Court bench – said “police officers are not expected to hysterically respond to calls of the arrest of suspects.”
In a landmark judgment that for the first time recognises another gender other than male or female, Justice Bere said transgender people did not choose to be that way.
The judge said: “For three days, the plaintiff (Nathanson) in this case was not only deprived of her liberty, but was subjected to forced anatomical examination in the most crude and naked manner by adventurous members of the police.
“As if that was not enough, she was then subjected to further invasive examination by two doctors at two different medical institutions all because of her transgender status, something that she did not invite upon herself.”
Justice Bere said Nathanson’s prosecution had been malicious, as there was nothing in section 25 of the Criminal Procedure and Evidence Act empowering police to act in the matter they did.
He added: “The legislature in its wisdom put a cap on the arrest of suspects and police officers are not expected to hysterically respond to calls of the arrest of suspects, but to satisfy themselves on reasonable grounds that the suspect has committed an offence before effecting the arrest.
“One cannot avoid concluding that the conduct of the police in arresting and detaining the plaintiff was quite outrageous because clearly, they abused their discretion in arresting her. The prosecution of the plaintiff was both thoughtless and malicious.”
The judge noted that Nathanson’s arrest had made him a target for journalists and social media users looking for salacious news.
“The quantification of damages is not meant to enrich the victim, but to try and salvage some kind of dignity for the pain endured by the victim,” Justice Bere said.
Nathanson sued then Home Affairs Minister, Ignatius Chombo, then Police Commissioner General Augustine Chihuri, then Bulawayo Central Police commander Chief Inspector Enock Masimba and Farai Mteliso, who called the police.
Justice Bere said: “In the result, the judgment be and hereby granted in favour of the plaintiff against the defendants jointly and severally the one paying the others to be absolved. The defendants pay interest at the prescribed rate on the amount awarded from the date of judgment to date of payment in full.”
The defendants were also ordered to bear the legal costs.
Justice Bere heard how following his arrest, Nathanson was taken to the United Bulawayo Hospitals where he was forcibly made to undergo gender verification.
He had been arrested by six police officers in riot gear in front of bar patrons before being taken to the police station.
Nathanson, now an international transgender activist living in the United States, told the judge that Mteliso tried to extort money from him before calling the police “without just, reasonable or probable cause, and maliciously.”
“I was… forced me to strip as a way of verifying my gender and I was subjected to insults and slurs by police officers. While in custody, I was also taken to the United Bulawayo Hospitals where I was again forced to strip and undergo a medical examination,” he said.
“I was subjected to humiliating questioning, viewing and morbid curiosity by medical personnel at the hospital.”
Through his lawyer Advocate Perpetua Dube, instructed by the now defunct Phulu and Ncube Legal Practitioners, Nathanson said he was detained for 48 hours before being taken to court.
Nathanson had asked the court for exemplary damages of US$2.7 million, saying the defendants or their agents had been “extremely abusive, malicious, indifferent and uncaring.” The arrest had been “unlawful” and his prosecution “malicious”.
