Transgender people deserve legal gender recognition legislation that is grounded in human rights, dignity and the belief that they should be able to change their gender marker simply because they choose to do so, without the need for expensive healthcare that is hard to come by. Imagine you are stopped at a routine roadblock on your way home from work on a Friday evening. The traffic officer asks you for your driver’s licence and you present it to them.
You are immediately filled with a great sense of fear and anxiety because the person on your licence does not look like you. And the gender indicated on your licence does not match you. This is because you are a transgender person who cannot get official documents that reflect your real identity.
The officer keeps looking at you and then looks down at your licence. You can tell they are growing very suspicious of you. The officer then tells you to step outside of your vehicle and informs you that they are going to arrest you on charges of fraud.
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Many transgender people experience this nightmare. They no longer look the way they did when the pictures for their official documents were taken and they no longer live the same gender identity. Ordinary tasks which most of us take for granted become great sites of fear and anxiety.
The process of having your legal documents (particularly an identity document) corresponding with how you live in the world is called legal gender recognition (LGR). This is the process through which a person changes their gender marker and name on official documents to align with their gender identity. This process is crucial to affirming the dignity, and ensuring the safety, of trans people.
In South Africa the law that gives effect to LGR is the Alteration of Sex Description and Sex Status Act, 49 of 2013 (Act 49). The first part of LGR, which involves changing one’s forename and is relatively easy in South Africa. It involves the submission of a form, which can be obtained from a local office of the Department of Home Affairs, and a R70 fee.
However, the second part of LGR, which involves changing one’s gender marker and, as a result, one’s ID number, is very difficult in South Africa. This is because Act 49 treats trans persons as if they are sick. This law requires a trans person to have two confirmatory letters from two different medical professionals to change their gender marker.
The first is to indicate that the person in question is experiencing gender incongruency (previously referred to as gender dysphoria). The second indicates that their sexual characteristics have been altered by some kind of medical treatment. These requirements mean that two medical professionals must validate what trans people already know about their gender identity.
Why do trans people need to go all the way to a doctor to confirm what they know to be inherently true? In the landmark case of September v Subramoney NO and Others (2016), the court confirmed that the State’s refusal to allow a person in a correctional facility to express their gender identity is unlawful and unconstitutional and constitutes unfair discrimination. The requirements under Act 49 do not align with this judgment.
In this matter the court also affirmed the right to dignity, noting that this right is crucial to our constitutional dispensation and involves the recognition of everyone’s incalculable worth. The court further affirmed that the right to equality, while also being a fundamental right in our Constitution, involves the principle of “reasonable accommodation”. This involved the state or private actors taking reasonable steps to accommodate diversity.
The court noted that the State was under an obligation to take steps to allow September to express her gender identity in the correctional facility and ordered the staff of the facility to use her pronouns as she/her. Second, there is an incorrect assumption by Home Affairs officials that all trans persons want their sexual characteristics to be altered by some kind of medical treatment. There are many trans people who do not wish to undergo such medical interventions, such as hormone therapy, surgeries, speech therapy and other cosmetic procedures.
These people are perfectly affirmed in their gender identity through socially transitioning, the process of living in a way that aligns with one’s gender identity, which often involves changes in name, pronoun and wearing make-up or prostheses, using padding or binding, and wearing clothes that align with one’s identity. There are no medical interventions necessary for social transitioning, so this group would not have confirmatory letters from healthcare professionals and therefore would not be able to apply for a change of their gender marker.
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