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Press Release: Court finds mar­i­tal sta­tus is irrel­e­vant when adju­di­cat­ing on appli­ca­tion to alter sex descrip­tion


For Imme­di­ate Release: 6 Sep­tem­ber 2017


Court orders that mar­i­tal sta­tus is an irrel­e­vant con­sid­er­a­tion when adju­di­cat­ing on an appli­ca­tion to alter sex descrip­tion in terms of the Alter­ation of Sex Descrip­tion Act


Today, 6 Sep­tem­ber 2017, the West­ern Cape High Court handed down judg­ment relat­ing to trans­gen­der spouses who are mar­ried in terms of the Mar­riages Act 25 of 1961 and have sub­se­quently applied to the Depart­ment of Home Affairs to alter their sex descrip­tor 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. One client’s mar­riage 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 LRC wel­comes the judg­ment handed down by Judge Binns-Ward who declared that the con­duct by the Depart­ment of Home Affairs in refus­ing to alter their sex descrip­tion because of their mar­riages in terms of the Mar­riages Act infringed on the appli­cants rights to admin­is­tra­tive jus­tice, equal­ity and human dig­nity and was incon­sis­tent with their oblig­a­tions in terms of the Con­sti­tu­tion.


He empha­sised that the Direc­tor Gen­eral of Home Affairs is autho­rised and oblig­ated to deter­mine appli­ca­tions sub­mit­ted in terms of the Alter­ation of Sex Descrip­tion Act by any per­son, irre­spec­tive of whether that person’s mar­riage or civil part­ner­ship (if any) was solem­nised under the Mar­riage Act or Civil Union Act. [Own empha­sis]


The Court reviewed and set aside the Direc­tor Gen­eral of Home Affairs’ rejec­tion, alter­na­tively, fail­ure to decide the appli­ca­tions made by the appli­cants in terms of the Alter­ation of Sex Descrip­tion Act and ordered him to recon­sider the appli­ca­tions within 30 days of the date of this order.


The Court also found that the dele­tion of the mar­riage of the fifth and sixth appli­cants con­cluded in terms of the Mar­riages Act in order to alter the sex descrip­tion of the fifth appli­cant was unlaw­ful and the Direc­tor Gen­eral is ordered to rein­state this mar­riage on the national pop­u­la­tion reg­is­ter within 30 days of this order. 


We are encour­aged by the Court’s deci­sion to ensure that the Alter­ation of Sex Descrip­tion Act, a law that is cru­cial in real­is­ing the right to iden­tity and equal­ity of trans­gen­der per­sons, is imple­mented in a man­ner that com­plies with the Con­sti­tu­tion of South Africa and that is respect­ful of the lived real­i­ties of trans­gen­der per­sons in South Africa. As the LRC, we cel­e­brate our clients’ courage in stand­ing up and fight­ing for their rights to iden­tity, bod­ily integrity and equal­ity.







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