Introduction

The law, being what it is, fundamentally requires all of its subjects to be either male or female. However, not all of its subjects find this black and white approach to gender descriptions appropriate or reasonable.

Attention has recently been focused on the role that gender plays in and for the purposes of sport. The debate has focused primarily on the manner in which a person’s gender is to be determined. Such debates are difficult debates to resolve in light of the highly sensitive nature of the manner in which a person considers him- or herself to be a him- or herself. The attitude of South African law to gender descriptions is an area of the debate that has received little attention in the media of late yet the law may provide the answers that are so desperately sought by the debate.

Consequently, consideration should be given to the provisions of a statute designed to deal with the alteration of the sex description of certain individuals in the form of the Alteration of Sex Description and Sex Status Act No. 49 of 2003 (“the Act”). The Act commenced with effect from 15 March 2004 and its preamble states that it is designed and intended “[t]o provide for the alteration of the sex description of certain individuals

in certain circumstances; and to amend the Births and Deaths Registration Act, 1992, as a consequence; and to provide for matters incidental thereto.”

The primary focus of the Act is to allow for a person to change his or her gender description on official documents. This process is provided for in section 2 of the Act, which sets out the procedure that a person may follow to change or amend his or her gender description. However, in addition, the Act provides an indication of the manner in which the law assesses a person’s gender and the manner in which such gender is legally determined and classified. Therefore, the Act defines the term “gender characteristics” as “the ways in which a person expresses his or her social identity as a member of a particular sex by using style of dressing, the wearing of prostheses or other means”.

In terms of section 2(1) of the Act, a person may be placed in a position to require the alteration of his or her gender description as a result of surgical or medical treatment or “by evolvement through natural development resulting in gender reassignment”. In addition, a person who is considered “intersexed” may also apply for the alteration of his or her sex description in the birth register. The term “intersexed” is defined in the Act to mean “… a person whose congenital sexual differentiation is atypical, to whatever degree”.

Choosing Sides: Gender in Law 1

By Neil Kirby, Director

May 2010Legal Brief

1. This article was first published in Without Prejudice, Vol 10, No 4, May 2010.

The authority vested with the right, in terms of the Act, to effect an alteration to the description of a person in official documents is the Director-General of the National Department of Home Affairs (“the Director-General”). An application is to be made to this person to alter a sex description on the birth register. In so far as a person has, by means of surgical or medical treatment, altered his or her gender characteristics, such an applicant is to make an application to the Director-General together with supporting reports from medical practitioners setting out the procedures and the treatment that altered the gender of the applicant. In so far as a person who is intersexed, which in contra-distinction to a person who has undergone surgical or medical treatment to change his or her gender characteristics, is also required to make an application to the Director-General together with a report prepared by a medical practitioner “corroborating that the applicant is intersexed”. In addition to a report by a medical practitioner, reports are also required from a qualified psychologist or social worker in which the qualified psychologist or social worker confirms that “the applicant is living and has lived stably and satisfactorily, for an unbroken period of at least two years, in a gender role corresponding to the sex description under which he or she seeks to be registered.”

South African law, through the Act, therefore draws a distinction between two types of lawful applicants for the purposes of gender re-assignment applications: the first being an applicant who has altered his or her gender by surgical or medical means and a person who is intersexed. The Act also draws a distinction between primary and secondary sexual characteristics. In this regard, the term “primary sexual characteristics” is defined to mean “the form of the genitalia at birth” whilst the term

“secondary sexual characteristics” is defined as “those which develop throughout life and which are dependant [sic] upon the hormonal base of the individual person”. The Act therefore recognises that intersexed persons exist as a category of persons whose sexual characteristics fall outside of the legal and societal classifications of what constitutes male and female, respectively.

The Act recognises that it is possible in South African law to change one’s gender description and, in fact, requires a person to choose a gender and stick to it, in so far as gender reassignment procedures are recognised and allows for a person who is intersexed to determine, with medical assistance, the gender by which he or she is to be classified for the purposes of the law.

According to the Act, the role that gender plays in relation to a person’s identity is a matter for medical practitioners and psychologists to determine. However, the importance of such a determination for legal purposes is crucial to the manner in which the law will treat a person in so far as certain rights and obligations are accorded to males and females, respectively, where the law requires that such a distinction be made. Such distinctions in law are required so as properly to afford correct and legitimate rights and obligations to people in gender roles and to avoid situations in which a person, as a result of one or another question being hung over his or her gender, is forced into the public spotlight and is faced with potential ridicule based on fear and ignorance and consequent unfair discrimination. The Act therefore plays an important role in our jurisprudential fabric by affording rights by recognition to those whose gender classification may expose them to such ridicule and discrimination to seek appropriate redress.

Nothing in this publication should be construed as legal advice from any lawyer or this firm. The articles published are general summaries of developments or principles of interest, and may not apply directly to any specific circumstances. Professional advice should therefore be sought before action based on any article is taken.

Werksmans Incorporating Jan S. de Villiers is a leading South African corporate and commercial law firm focused on achieving the best legal outcome for our clients, which include multinationals, listed companies, financial institutions, entrepreneurs and government. Our firm’s coveted reputation is founded on the track record, over more than 100 years, of Werksmans and Jan S. de Villiers, which merged at the beginning of 2009 to create South Africa’s most powerful law firm specialising in mergers and acquisitions (M&A).

Our firm also has a formidable reputation in commercial litigation and dispute resolution, as well as banking and finance. We are distinguished by the people, clients and work that we attract and retain - our more than 170 lawyers are a powerful team of independent-minded individuals who share a common service ethos.

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About Werksmans Incorporating Jan S. de Villiers

About the Author

Neil Kirby

Title: DirectorDirect tel: +27 (0)11 535 8198Direct fax: +27 (0)11 535 8698Switchboard: +27 (0)11 535 8000Email: nkirby@werksmans.com

Neil is a health law specialist and has headed Werksmans’ Health, Pharmaceutical & Life Sciences practice area since 2000. Neil is also a specialist in consumer rights law both in theory and in practice. He has published numerous articles on healthcare, environmental, administrative, constitutional and consumer rights law matters and is frequently invited to speak at national and international seminars and workshops. Neil is currently Chair of the Medicine & Law Committee of the International Bar Association. He is named as a leading lawyer in Dispute Resolution by Chambers Global: The World’s Leading Lawyers for Business, and as a leading lawyer in Healthcare by Best Lawyers International.

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