The Alteration of Sex Description and Sex Status Act was signed into law in 2004. It was a groundbreaking piece of legislation, intended to enable transgender and intersex people to correct their official birth certificates and identity books or cards, by updating the gender assigned to them at birth, to their accurate gender identity.
While the law represented progress, it has been subject to criticism – and not only from those who believe that gender is biologically determined, with exclusive reference to one’s genitals visible at birth.
Reliable local statistics are hard to find, but with estimates that about 1,7% of a population are likely to be intersex, and about 0,5% transgender, a full 2,2% of the South Africa population (or 1,2 million people) might benefit from the Act’s provisions. In the 10 years following the enactment of the law, however, only 95 people were able successfully to access its provisions. Something has clearly gone wrong.
The Department’s inconsistent and unfair implementation of the Act came before the Cape Town High Court late last year. A number of happily married, trans individuals had applied for correction of their gender on their official identity documents. The applicants had all been married in accordance with the Marriage Act, to spouses of the opposite sex. The correction of records would have the result that they were in same sex marriages going forward. The Department refused to assist two of the applicants unless they divorced their spouses – and a third was assisted but had their marriage deleted from the official records and their married name dispensed with, without their consent.
The cases came before court, with orders sought (1) compelling the Department to assist applicants in terms of the Act regardless of their marital status, and in the alternative (2) declaring the statutory framework constitutionally invalid to the extent that it disallowed the correction of the recorded gender of a married person.
The Court considered the statutory framework, and noted that the Marriage Act dealt primarily with the solemnisation of a marriage – that is, who was authorised to act as a marriage officer, and what formula should be followed to conclude a marriage. Nothing in the Act prohibited a spouse in a marriage from later altering their recorded gender. The Civil Unions Act provided a parallel system for the solemnisation of same sex marriages. Once solemnised, the distinction ended and there was only one institution of marriage (reached by different routes).
Thus, the Court found, an alteration of gender records was in no way irreconciliable with the continuation of a marriage solemnised under either law.
The Court thus ruled that the Department, in its treatment of the applicants, had infringed their constitutional rights and failed in its legal obligations. Marital status and whether a marriage was solemnised under the Marriage Act or Civil Unions Act, was entirely irrelevant. The Department was directed to process the alteration applications of the first two applicants, and restore in its records the marriage of the third applicant, within 30 days.