Right to Identity: The Implementation of the Alteration of Sex Description Act
The right to identification documents that correctly reflect one’s personal details is often not thought to be a concern. This is likely because it seems to be a non-issue: identity documents that are inaccurate can be rectified. Information may become inaccurate due to changes in a person’s life, such as marriage. There are a number of provisions in South African law that allow for identity documents to be amended when personal information changes1. The Alteration of Sex Description and Sex Status Act49 of 2003 (Act 49) was developed in order to enable individuals to alter the gender that was recorded at their birth. Despite the passage of this Act in 2003, there remain a number of obstacles confronting individuals who have applied to the Department of Home Affairs in order to change their sex description.
The Legal Resources Centre (LRC) has a number of transgender clients who have been struggling to legally change their gender. This chapter is focused on the experiences of transgender persons, primarily. Transgender2 persons do not identify with the gender assigned to them at birth. Transgender persons feel that there is a mismatch between their gender identity and their biological/physical sex. This consequently means that a transgender person’s legal identification documents (including identity document books, passports, driver’s licences and birth certificates) misrepresent the gender identity of the individual, since they reflect the gender assigned to them at birth3 – regardless of whether or not this is the felt experience of the individual. This is a result of the incorrect assumption that gender and/or sex4 are necessarily derived from and determined by physical sexual organs, and cannot change. While some concerns with regards to intersex persons5 may be noted, the majority of issues raised are based on our work with our transgender clients.
This chapter seeks to provide a comprehensive understanding of Act 49’s procedural requirements, the issues that have emerged with the implementation of the Act, and the possible ways that these issues can be addressed. It will be evident that the implementation issues of the Act amount to unjust administration and violate, inter alia, the right to equality, dignity, privacy and just administration.
THE ALTERATION OF SEX DESCRIPTION AND SEX STATUS ACT49 OF 2003
The Preamble of Act 49 establishes that its purpose is to, ‘provide for the alteration of the sex description of certain individuals in certain circumstances’. Section 2(1) provides:
‘Any person whose sexual characteristics have been altered by surgical or medical treatment or by evolvement through natural development resulting in gender reassignment, or any person who is intersexed may apply to the Director-General of the National Department of Home Affairs for the alteration of the sex description on his or her birth register.’ [Emphasis added]
From this provision there are four ‘circumstances’ that the Act identifies as eligible for a sex description alteration. Firstly, individuals who have had surgical intervention that has changed their ‘sexual characteristics’ (genitalia at birth, as well as those that develop from hormones over time). Secondly, individuals who receive hormone replacement treatment (i.e. ‘medical treatment’). Thirdly, individuals whose sexual characteristics have changed through ‘natural development6’. This part of the provision is unclear. During the Portfolio Committee for Home Affairs’ meeting on 9 September 2003, which included deliberations about Act 49, Committee member Mr Swart raised concern about the lack of clarity with the phrase ‘evolvement through natural development’. Ms Cohen, a representative from the South African Human Rights Commission, noted that she had read about a case where a male child appeared female until puberty and only then did he grow a penis and his testes descended7. However, it was not certain if this is what the Bill’s drafter had intended with the phrase. Similarly, during the public hearings, Sally Gross8, Simone Heradien9 and the Equality Project10 each raised concerns with the ambiguity of this phrase. However, no clarity has been provided. The fourth and last ‘circumstance’ provided for in the Act is an addition made following the public hearings process and was absent from the Bill version11. The addition is for ‘intersex’ persons.
The Act requires that an application is submitted with a birth certificate, as well as a letter from two separate medical practitioners confirming the gender reassignment procedures that have taken place12. The Act charges the Director-General of the Department of Home Affairs (the Department) with custody of the decision-making process of the Act 49 applications. Every refused applicant ought to receive a letter from the Director-General explaining the reasons for the rejection13. The rejection may be appealed to the Minister of the Department within 14 days following the communication of the rejection the applicant, and the appeal should be accompanied with the rejection letter, as well as the application form, birth certificate and two letters of support14. Should the Minister sustain the rejection, the applicant may appeal this decision at their local Magistrate’s Court15. Similarly, this appeal should include all the application materials, as well as the reasons for the Minister’s rejection16. However, it does not state in the Act that the Minister is required to furnish written reasons for the rejection to the applicant. The Act allows for the Magistrate to overturn the rejection decisions, and to instruct the Director-General to alter the sex description accordingly17.
If an application is successful, the Director-General must alter the sex description in the birth register, in accordance with section 27A of the Births and Deaths Registration Act51 of 199218. The original sex description preceding the alteration is considered void as soon as the alteration has been officially recorded19. A new identity number is created for the applicant, since the thirteen-digit number includes what is referred to as a ‘gender marker’. The gender marker is made up of the four digits that follow the first six digits that represent one’s birth date. The sequence indicates one’s gender based on its first number. Numbers zero to and including four indicate that the individual is female. Numbers five to and including nine indicates a male person. The other three digits in the gender marker are random. Given that a new identity number is created, a successful applicant’s previous identity number and identification documentation is automatically void once the sex description alteration is official. Successful applicants, therefore, require new identification documentation.
1. Problematic implementation and consequences
There are two broad issues that have emerged with regards to the implementation of Act 49: the unjust delayed and improper processing of applications, and unfair and baseless rejections.
Delayed and improper application processing
One of the key issues that has arisen from the LRC’s work with its strategic partners and clients is that there is a trend whereby Act 49 applicants have to wait between one year and seven years for the processing of their application. During this time, many applicants follow up on their application using the Customer Services Centre call line in order to establish what is happening with their application. A number of LRC clients have been informed that their applications have been lost and that they need to resubmit their application. If the client did not retain their original proof of payment, they were required to pay for the reapplication. At least two clients have had to resubmit three applications.
An additional issue that has become apparent is problems processing simultaneous applications for a sex description and forename alteration. There is nothing in the existing legislation that prohibits such simultaneous applications. It is also self-evident that this combination of applications would be submitted since sex description alteration often will mean that the forenames of an individual are incongruent with the gender that they have applied for. Moreover, the combination of sex description and forenames alterations mark a starting point for the applicant whereby their gender identity and official record are aligned.
After long delays with the processing of their Act 49 applications, two of the LRC’s clients who have succeeded in securing amended sex descriptions have encountered another hurdle. The issuance of their new identity document reflecting their amended sex description has also been delayed. When one of the clients asked for an explanation as to why their original time frame of four to six weeks had suddenly changed to one to six months, she was informed that her application for the new identity document was ‘pending investigation’. When she asked what this meant, she was not informed. The delays with issuing the amended identification are exceptionally problematic. As noted earlier, as soon as an applicant’s sex description has been officially altered, their old identity number is invalidated since the gender marker has to be altered, and thereby a new identity number is generated. This means that all their previous identification documentation is void. Some applicants are issued with a written letter from the Director-General of the Department that notes that their old identity number has been replaced with a new one. However, many have not received this letter and are rendered vulnerable as a result of having no valid identification. This prohibits their ability to carry out daily chores such as banking.
A number of problematic ‘justifications’ for the delays have been provided. One of the main reasons has been that applicants have ‘failed’ to provide evidence of their gender reassignment surgery and have ‘failed’ to meet the requirements of the Act. It was explained in the previous section that the Act clearly makes allowances for individuals to qualify for a sex description alteration20 without having had surgical interventions. South Africa’s provisions in this regard are fairly progressive in terms of a global context. Many countries that allow for sex description alterations impose other intrusive impositions upon applicants. For instance, most European countries require that an applicant prove that they have been sterilised in order to qualify for a sex description alteration. However, the progressive nature of the Act’s provisions is undermined by its improper implementation. The fact that Act 49 does not require surgery is significant given that there are a number of obstacles to individuals accessing gender reassignment surgery. Firstly, the public health sector is unable to meet the demand for gender reassignment surgery since it is under-resourced. There are two public specialist clinics available to transgender people: the Steve Biko Academic Hospital in Pretoria, and the Groote Schuur Hospital in Cape Town. Groote Schuur Hospital offers the most comprehensive care, with a specialist Transgender Clinic21. The plastic surgeon, Dr Adams, is allocated with four gender reassignment surgery slots per annum by his hospital chiefs, and he states that he has 30 patients on his waiting list22. This means that patients have an average of a 7.5 year wait before they can have the necessary surgeries.
Secondly, the private health sector entails phenomenally high costs because the surgeries required for gender reassignment surgery are intricate and highly technical. Medical aid schemes in South Africa are governed by the Medical Schemes Act 131 of 1998 (Medical Schemes Act). Annexure A to the Regulations of the Medical Schemes Act is an explanatory note establishing a list of diagnoses and concomitant treatments that medical aid schemes are obliged to finance. These are known as Prescribed Minimum Benefits. Absent from this list of diagnoses is ‘Gender Identity Disorder’ (the classification used in the Diagnostic and Statistical Manual of Mental Disorders to diagnose transgender persons). Subsequently, the related treatments and surgeries are also not listed. This means that, currently, medical aid schemes are not legally required to fund gender reassignment surgery. Furthermore, it seems that claims (including ex gratia applications) for medical aid coverage have been denied on the grounds that gender reassignment surgery constitutes ‘cosmetic surgery’ and is not considered ‘medically necessary’. Upon investigation, it has become clear that there is no official definition of either ‘cosmetic surgery’ or ‘medically necessary’. It relies on the interpretation of the board members of a medical aid scheme. This is significant because procedures that are not considered to be ‘medically necessary’ are automatically excluded. Thus, a thorough understanding of being transgender and the related transition process is an important determinant of how the medical aid schemes will classify gender reassignment surgery applications.
The fact that Act 49 does not require surgery is of the utmost importance since most transgender persons in South Africa are unlikely to be able to access gender reassignment surgery in a timely way, if ever, due to the waiting list in the public sector and the high costs of the private health sector. Despite the fact that surgery is not a prerequisite for a sex description alteration in Act 49, officials are treating it as such. A Department office refused to even accept the Act 49 application of a LRC client because the applicant did not have proof of surgery.
Another problematic practice related to the rejections of Act 49 applications is that the applicants are not furnished with the reasons for the rejection in writing from the Director-General, as required by section 2(3) of the Act. This causes a problem for following the subsequent steps in the appeal process, as contemplated in the Act, since it requires that a written letter of explanation be included in the appeal. The failure to provide written reasons for a rejection, as well as rejections on the basis of the applicant not having had surgery, are both blatant violations of the Act’s requirements. Rejections on the grounds that there was no evidence of surgery provided by applicants who are on hormone treatment, and who provided evidence thereof, constitutes a ground for judicial review in terms of PAJA because such a reason is an error of law23. Furthermore, the failure to issue written reasons for the rejection constitutes a ground for judicial review under section 6(2)(g) of PAJA because ‘the action concerned consists of a failure to take a decision’.
While Act 49 is fairly progressive at face value, it is not international best practice. Denmark and Argentina both allow for the official alteration of one’s sex description without any medical expert statements and/or support. The allowance for self-identification is significant for a number of reasons; perhaps most important of which is that it does not impose prerequisites on transgender persons that may not be consistent with how they wish to manage their transition process. For instance, many countries require evidence of gender reassignment surgery. In fact, most of Europe requires that transgender persons are sterilised before they can apply for a gender marker change24. South Africa requires, at least, that an applicant has had hormone treatment. However, even this is an imposition. It imposes what is considered a threshold to ‘qualify’ as transgender. However, one’s gender identity should not be determined by a government institution, or anyone other than oneself. Moreover, access to hormone treatment and surgery may be a barrier due to limited resources. Requiring either or both as a prerequisite for a gender marker change precludes transgender people who cannot afford these services, are not physically fit to undergo them, and/or do not wish to incorporate these procedures in their transition process. Ideally, South Africa would follow Denmark and Argentina’s precedent in order to ensure that we do not discriminate against individuals who fall into one or more of these categories. Removing the prerequisites would enable more genuinely equal access to this service and align South Africa to the international best standard of practice.
In lieu of aligning the South African legislation with international best practice, it is imperative that the Department circulate directives that address the shortfalls identified with the implementation of Act 49. The directives ought to clarify what is meant by the phrase ‘evolvement through natural development’. Significantly, the directives need to re-emphasise that Act 49 does not require evidence of surgery as a prerequisite for a sex description alteration, and that evidence of hormone treatment is sufficient.
The delays with the processing of the applications suggests the need for the directives to clearly provide time frames in which the applications can be expected to be processed, as well as the appropriate timelines related to the appeal processes. It was noted earlier that new identification documentation is necessary as a result of a sex description alteration since an applicant’s previous identity number is automatically rendered void with the alteration. It is therefore sensible that amended identification documentation is automatically issued with a successful Act 49 application, given the significance of having accurate identification documentation.
Lastly, the directives should provide for the ongoing training of Department officials in order to ensure that the shortfalls with the implementation of the Act are addressed, and that officials are held accountable.
The purpose of this chapter was to illustrate the major shortfalls with the implementation of Act 49. One of the key issues is the major delays with the processing of applications and the subsequent delays with the issuance of the amended identification documentation. Additionally, the Department has been rejecting applications on the grounds that no evidence of surgery has been provided, despite the fact that the Act clearly provides for hormone treatment as a sufficient ground to qualify for a gender marker alteration. Furthermore, written reasons for the rejections have not been issued to the applicants, which jeopardises their ability to follow the appeal process set out in the Act. Both of these shortfalls are violations of PAJA and qualify for judicial review. The LRC recommends that directives are issued that directly address these shortcomings.
As the saying attributed to Mahatma Gandhi goes: ‘[t]he true measure of any society can be found in how it treats its most vulnerable members’. This suggests the imperative to ensure that the constitutional values to uphold the equality and dignity of everyone in South Africa is of the greatest significance if we are to judge our progress as a democracy. This includes the need to protect the rights of minorities such as transgender persons. A good starting place would be to ensure that the avoidable bureaucratic blunders outlined above are eliminated.
- The following amendments are listed as possible alterations: forename/s, surname, gender, the rectification of the birth date, gender and/or place of birth on the birth register. More information is available from the Civic Services page on the Department of Home Affairs website, available at http://www.dha.gov.za/index.php/civic-services/amendments, accessed on 1 July 2015.
- Also referred to as ‘transsexualism’. ‘Trans’* (with the asterisk) is an umbrella term that includes transgender, but also includes other groups such as cross-dressers, gender non-conformist persons, and intersex.
- Robert Hamblin and Mzikazi Nduna ‘Alteration of Sex Description and Sex Status Act and Access to Services for Transgender People in South Africa’ (2013) 9, 1&2 New Voices in Psychology 50 at 51.
- Chris Bateman ‘Transgender Patients Sidelined by Attitudes and Labelling’ (2011) 101, 2 South African Medical Journal 91.
- Intersex persons are born with ambiguous genitalia, chromosomes, or internal reproductive systems. Often intersex individuals are assigned a sex description at birth despite the ambiguous sexual organs because birth registration adheres to a binate definition of people as either a ‘female’ or ‘male’.
- Parliamentary Monitoring Group ‘Alteration of Sex Description and Sex Status Bill: hearings’, available at https://pmg.org.za/committee-meeting/2832/, accessed on 1 July 2015.
- Sally Gross ‘Submission’ Submission to the Portfolio Committee on Home Affairs, 9 September 2003, available at http://pmg-assets.s3-website-eu-west-1.amazonaws.com/docs/2003/appendices/030909gross.htm, accessed on 1 July 2015.
- Simone Heradien ‘Oral Representation’ to the Portfolio Committee on Home Affairs, 9 September 2003, available at http://pmg-assets.s3-website-eu-west-1.amazonaws.com/docs/2003/appendices/030909simone.htm, accessed on 1 July 2015.
- Lesbian and Gay Equality Project (South Africa) ‘The Alteration of Sex Description and Sex Status Bill’ Submission to Portfolio Committee on Home Affairs, 9 September 2003, available at http://pmg-assets.s3-website-eu-west-1.amazonaws.com/docs/2003/appendices/030909equality.htm, accessed on 1 July 2015.
- Alteration of Sex Description and Sex Status Bill [B37 – 2003], available at http://pmg-assets.s3-website-eu-west-1.amazonaws.com/docs/2003/appendices/030909b37-03.pdf, accessed on 1 July 2015.
- Section 2(2) of Act 49.
- Section 2(3), ibid.
- Sections 2(4) and (5), ibid.
- Section 2(6), ibid.
- Section 2(7), ibid.
- Section 2(9), ibid.
- Section 3(1), ibid.
- Section 3(2), ibid.
- Emine Saner ‘Europe’s terrible trans rights record: will Denmark’s new law spark change?’, The Guardian, available http://gu.com/p/4x7e9/stw, accessed on 2 July 2015.
- Chris Bateman ‘Transgender Patients Sidelined by Attitudes and Labelling’ (2011) 101, 2 South African Medical Journal 91.
- Ibid 92.
- Section 6(2)(d) of PAJA.
- Emine Saner ‘Europe’s terrible trans rights record: will Denmark’s new law spark change?’, The Guardian, available at http://www.theguardian.com/society/shortcuts/2014/sep/01/europe-terrible-trans-rights-record-denmark-new-law, accessed on 23 June 2015.