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.