Married transgender women take Home Affairs to court

Despite repeated promises of change, the Department of Home Affairs appears to be continuing to make life difficult for transgender South Africans.

On Thursday, the Legal Resource Centre (LRC) announced that it was representing three transgender women and their spouses in an application in the Western Cape High Court.

The women are seeking to compel Home Affairs to amend their sex description on the national population register and on their birth certificates, and to issue them with new identity numbers.

According to the LRC, the department has refused to amend the sex description of the women, arguing that their existing civil marriages, which are heterosexual, preclude them from doing so as this would amount to recognition of a same-sex marriage under the Marriages Act.

The applicants are married in terms of the Marriages Act, and have applied to have their sex description amended on their birth certificates in terms of the Alteration of Sex Description and Sex Status Act 49 of 2003.

In South Africa, same-sex marriages are registered under the Civil Unions Act, and not the Marriages Act. South African law does not provide for the option to move the registration of an opposite-sex marriage to a same-sex marriage (if for, example, one of the partner’s sex description was to change.)

On this basis, the department deleted one woman’s marriage from the National Population Register, while the two others were advised to get divorced in order for the department to agree to change their sex description.

The applicants are asking for the following relief from the court:

1. Declaring that the Director-General is required by law to alter a person’s sex description in terms of the Alteration of Sex Description and Sex Status Act (SDA), irrespective of that person’s marital status, and that he does not have the power to delete a marriage from the Population Register, or to alter a spouse’s surname, because one spouse has successfully applied for an alteration of their sex descriptor in terms of the SDA.

2. Declaring that the Department of Home Affairs’ refusal to process the applications in terms of Section 2 of the SDA of two of the applicants, because they were married, is unconstitutional and unlawful.

3. Declaring that the Department of Home Affairs’ deregistration of the marriage between two applicants was unconstitutional and unlawful.

4. Directing the Director-General, within one month of the date of this order, to alter the sex description and forenames of the applicants.

The application is backed by Gender DynamiX (GDX), a civil society organisation advocating for the rights of transgender people in South Africa.

“GDX supports the application as it hopes that this will be an opportunity to address the issue of discrimination and prejudice that is being suffered by transgender persons wishing to apply to have their sex description on their birth certificates amended,” said the organisation in a statement.

“A positive outcome in this case will go a long way in realising the rights of transgender persons to dignity, family life, bodily integrity and equal treatment before the law,” added the LRC.

In September last year, a Boksburg transgender man was forced to take Home Affairs to court after a 26-year struggle to get it to accurately reflect his sex on a new ID document.

In June, Malusi Gigaba, the Minister of Home Affairs, admitted that his department had often failed LGBTI South Africans, but promised to take steps to ensure that they are treated as equal citizens.