Despite problems in implementing the law, it’s been revealed that 95 South Africans have legally changed their gender since the progressive Alteration of Sex Description and Sex Status Act came into effect in 2004.
This information was released by the Minister of Home Affairs, Naledi Pandor, in response to parliamentary questions by MP Manny de Freitas, the DA’s Shadow Minister of Home Affairs.
De Freitas was spurred to ask Home Affairs for information on the implementation of the act after he was approached by a transgender individual who, he said, “is battling to resolve various applications for documents”.
Passed in 2004, the Alteration of Sex Description and Sex Status Act allows transgender and intersex people to legally change their gender identity.
However, Mambaonline has previously reported numerous instances in which Home Affairs has delayed or ignored applications by transgender or intersex people to change their gender in their identity documents.
In May last year, Jacqui Louw from Cape Town, who had undergone gender reassignment surgery, was forced to obtain a court order forcing Home Affairs to have her identity document updated after a two year wait.
De Freitas explained that while the sex status law is an excellent one, he remains concerned about “officials who do not implement the law and instead use their personal prejudice and phobias instead to make decisions”.
He added: “All too often, individuals who have a genuine and legitimate need for gender reassignment are marginalised. All too often such people are not respected and their dignitary is often impinged on. This happens simply because people don’t, and sometimes refuse, to understand the affected person and his or her circumstances.”
According to Leigh Ann van der Merwe, Coordinator of SHE (Social, Health and Empowerment Feminist Collective of Transgender and Intersex Women of Africa), one of the issues at the heart of the problem is the interpretation of the act.
She asserts that the law makes provision for any person who is receiving treatment of any kind to be eligible to have their gender changed.
“The act doesn’t require surgery, as long as you have had some kind of treatment ﾖﾖ whether it be counselling, hormone therapy or gender reassignment surgery. Many people don’t have access to medical treatment or surgical procedures in a country like South Africa,” Van der Merwe said.
However, Home Affairs does not have a consistent interpretation of the law and may require applicants to have completed surgical procedures before considering their request.
“In my case they wanted a certain type of wording on the letter; if the letter didn’t indicate that there was final surgery done they wouldn’t change my documents. But another branch of Home Affairs was fine with it,” she said.
With or without surgery, Van der Merwe says, applicants continue to face inordinate delays. “There are a number of people that are stuck in the system ﾖ not going forward not going backward ﾖ being shoved from pillar to post. It’s very problematic at the moment.”
These delays can have a devastating impact on the lives of transgender people, affecting their ability to get a job or apply for a passport.
Through additional questions to the Minister of Health, Dr Aaron Motsoaledi, De Freitas also discovered that the Department of Health does not keep official records of gender reassignment surgical procedures that are performed in public sector facilities.
The department revealed that there are currently only two public sector clinics in South Africa with the specialised and skilled healthcare providers needed to perform gender reassignment surgery; these are linked to the universities of Pretoria (UP) and of Cape Town (UCT).
Despite the lack of an accurate database, “information at hand suggests that the UP clinic has performed more than a hundred procedures since inception in 1990 and the UCT clinic more than 10 since 2009,” said Motsoaledi in his response.
“Acts such as the Alteration of Sex Description and Sex Status Act ensure that the golden principles listed in our Constitution and its Bill of Rights are put into practice,” commented De Freitas. “It is now up to each and every one of us to be supportive of this and to educate those that do not understand this issue.”