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Press Release: Mar­ried trans­gen­der women take Home Affairs to court to alter their sex descrip­tion


For Imme­di­ate Release: 23 Feb­ru­ary 2017


Rep­re­sent­ing three trans­gen­der women and their spouses, the Legal Resources Cen­tre has launched an appli­ca­tion in the West­ern Cape High Court seek­ing to com­pel the Depart­ment of Home Affairs to amend their sex descrip­tion on the national pop­u­la­tion reg­is­ter and on their birth cer­tifi­cates, and issue them with new iden­tity num­bers.


The indi­vid­ual appli­cants (their names have been with­held in efforts to pro­tect their iden­ti­ties as they fall into a vul­ner­a­ble class of per­sons in South Africa) are all mar­ried in terms of the Mar­riages Act 25 of 1961, and have all 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.


The Depart­ment of Home Affairs refused to amend the sex descrip­tion of our clients, argu­ing that the exist­ing civil mar­riages, which are het­ero­sex­ual, pre­cluded the Depart­ment from amend­ing the sex descrip­tor as it would amount to recog­ni­tion of a same sex mar­riage under the Mar­riages Act. In light of this rea­son­ing, one of our client’s mar­riages was deleted from the National Pop­u­la­tion Reg­is­ter, while two of our clients were advised to get divorced in order to give effect to their gen­der iden­tity rights.


The appli­ca­tion is sup­ported by Gen­der DynamiX, a civil soci­ety organ­i­sa­tion advo­cat­ing for the rights of trans­gen­der per­sons 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.


The pri­mary relief that we are seek­ing on behalf of our clients is as fol­lows:

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 49 of 2003 (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 the First and Third Appli­cants, because they were mar­ried, is uncon­sti­tu­tional and unlaw­ful.

3.            Declar­ing that the Depart­ment of Home Affairs’ de-registration of the mar­riage between the Fifth and Sixth 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.


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.







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