Truth be told the old apartheid slogan still rings true today. When we hear ‘separate but equal’ it triggers thoughts on the hierarchies that undeniably continue to exist within South Africa. It stands in stark contradiction to the vision of a society in which all citizens are free, equal and able to live with dignity. Today we experience a society where certain social identities continue to matter more than others resembling notions of our not too distant oppressive past. It is strange how history tends to repeat itself in principle and so the cycle of oppression continues. The dawn of democracy brought hope to many including queer, and in particularly transgender persons, who were at the forefront of many, if not all, the major marches across the world for Queer liberation. Yet, here we are again at the gates of segregation in a nation that promised us our liberation.
South Africa is praised throughout the free and democratic world for its progressive Constitution that provides constitutional protection for all persons, including transgender, intersex, gay, lesbian and bisexual persons. The Constitution specifically list sexual orientation (identifying as being gay, lesbian, bisexual or even heterosexual) as a ground upon which a person may not be discriminated against. With Parliament passing the Alteration of Sex Description and Sex Status Act 49 in 2003 (Act 49), gender identity also became a constitutional ground upon which a person may not be discriminated against as encapsulated under ‘other grounds’ in the equality clause of the Constitution.
Heard on 10 August 2017, KOS v Minister of Home Affairs highlights the tension that exist between government administrative processes and the adverse lived realities of transgender persons who are married. This matter concerning the forced divorces of couples initially deemed opposite-sex when the marriage was concluded, however, deemed same-sex after one spouse affirms their gender identity, has a history dating back to the early 2000s. The adverse experiences of transgender spouses however dates back to the 1970s where the State illustrated its strength to oppress by either invalidating marriages involving a transgender spouse or denying benefits accruing to transgender spouses flowing from marriages concluded in community of property.
Since 2014, Gender DynamiX (GDX) and Legal Resources Centre (LRC) have actively engaged on ways in which the judiciary can guide law reform processes in order to secure legal protections for transgender persons based on their constitutional rights. In 2014, GDX and the LRC released a Briefing Paper on Act 49 highlighting the many challenges transgender and intersex persons are faced with in the application of the Act. It emphasised the need to review Act 49, passing standard operating procedures and/or issuing directives/regulations guiding civil servants across the department nationally on how to implement Act 49 and how to engage transgender and intersex persons when legal relief is sought. It is thus with great joy that Gender DynamiX welcomes the outcome in KOS v Minister of Home Affairs. through the hardwork and dedication of LRC as legal representatives for transgender and intersex persons and the expertise, experience and support as amicus curiae from Gender DynamiX that another victory for transgender and intersex persons have been secured.
Gender DynamiX looks forward to how the case progress alongside other cases through the judicial system and eagerly awaits the response of the Department of Home Affairs whom we continue to engage around law reform and policy development in the context of gender recognition law (both in substance and process) and the effect it has on other pieces of legislation. We stand firm in our commitment to building a country that respects all transgender and intersex persons and will therefore continue working with passionate partners and allies such as the Legal Resources Centre in securing more victories in future. Henceforth, we remain resolute in holding government to account by fighting to ensure, as per the judgement by Judge Ashley Binns Ward:
the constitutional application of Act 49;
realisation of dignity, freedom and equality for transgender and intersex persons;
that marital status does not affect the outcome of an application to alter a person’s sex-descriptor;
that the applicants sex-descriptor is changed accordingly in the prescribed 30 days period;
that no marriage involving a transgender spouses will be deleted from the national population register under similar circumstances;
that the deleted marriages be reinstituted within the prescribed time-period;
the further monitoring of when and how the Department of Home Affairs mishandles matters concerning transgender and intersex persons and thus calling on them to account.
Gender DynamiX wholeheartedly hopes that the Department of Home Affairs will not take this case on appeal. By complying with the court order the department will showcase its commitment to a constitutional democracy in which the personal biases of civil servants and public office bearers do not restrict, limit or inhibit transgender and intersex persons from accessing their constitutionally guaranteed rights. Civil society has a keen interest in working in partnership with government to uphold the dignity, freedom and equality of all people. This is a perfect opportunity for the Department of Home Affairs to show solidarity with minority groups and invest in a pro-active approach for change.
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