Issue: Recognition of transgender persons in SA
Hi. This question is not about me, but I have a colleague who recently “become a woman”. He used to just wear dresses but now has had surgery to have breasts. We have never really asked him anything this. It feels unusual and many of us have so many questions. Anyway, I wanted to know what the law says about this. Is it even allowed in South Africa?
From The Legal Desk:
Hello anonymous, and thank you for your question.
Off the bat, I believe it would be prudent for me to point you to resources with more experienced people who could enlighten you better on this matter. Some such resources include the Southern Africa Litigation Centre, the Other Foundation, or the Professionals Association for Transgender Health (PATHSA).
My general viewpoint is that one must respect even that which one may not fully comprehend. Thus, my advice to you is, if you really want to know anything, ask your colleague respectfully. If they tell you they prefer to be named, identified, or treated in a particular way, then respect that. As for your question of whether it is allowed in South Africa, let’s take a look at the legals…
Section 9(4) of the Constitution of the Republic of South Africa, 1996 (“the Constitution”), prohibits unfair discrimination on grounds including gender, sex, and sexual orientation. This protection extends to transgender individuals. The Promotion of Equality and Prevention of Unfair Discrimination Act1 (“PEPUDA”) enforces the constitutional mandate to eliminate unfair discrimination and harassment, safeguarding equality for all, regardless of sex, gender, or sexual orientation. In the workplace, section 6(1) of the Employment Equity Act2 prohibits unfair discrimination in the workplace based on gender, sex, sexual orientation, and related grounds. Likewise, section 187(1)(f) of the Labour Relations Act3 renders dismissals based on such discrimination automatically unfair.
While the above legislation does not explicitly refer to transgender persons, to give effect to the objects and purports of the Bill of Rights, “gender” and “sex” in all legislation must be read to include transgender and intersex.
Before the constitutional era, transgender individuals faced significant legal challenges. Although sex realignment surgeries were legal before 1976, courts did not recognise post-surgery sex as legally valid. For example, in W v W,4 the court ruled that biological and chromosomal sex at birth could not be altered through surgery. In Simms v Simms,5 a similar conclusion was reached, excluding psychological identity from the legal definition of sex. This created hardships for transgender individuals, who often faced accusations of fraud when their documentation did not align with their affirmed gender.
The Human Rights Commission found the prevailing rules were unconstitutional as they infringed on rights to privacy and dignity. Thus, in response to these challenges, the Alteration of Sex Description and Sex Status Act6 (“the Act”) was enacted. According to section 2 of the Act, transgender individuals who undergo sex realignment surgery may apply to change their sex description on official documents. Section 3(2) of the Act further states that once altered, the individual is legally recognised as their new sex from the date of the change’s registration.
Hence, in your case, your colleague will be legally regarded as a woman from the date their change is registered. This also means they would even be able to change their name following a sexual realignment surgery. Section 2 of the Act states that transsexuals who have undergone sex realignment surgery may apply to have their sex description changed on their birth certificate and other formal documents.
As I mentioned earlier, you should just approach your colleague with kindness and an open mind. They may appreciate your curiosity if it is expressed respectfully. Hope this helps.
Written by Theo Tembo
citation: Tembo, T. “Gender Identity” (06 Jan 2025). The Legal Desk. Available at: https://wp.me/pfvcwT-6v
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