Issued by African National Congress - Parliament
26 September 2003
Madam Speaker,
Honourable Ministers and
Members of the House
The Bill before the House follows a report to the then Minister of Justice and Constitutional Development, Minister Omar, into the legal consequences of sexual realignment and related matters. The Law Commissions report made certain recommendations regarding legislation providing for the application to the Director General of Home Affairs for the alteration of a person's sex description in the National Population Register.
The Bill deals with the actual application for the alteration of the sex description to the Director General of Home Affairs. It sets out the requirements for such application, the manner in which the DG has to deal with a refusal to register and the steps that the applicant may take if the application was unsuccessful. It further obliges the Director General to register the altered sex description in terms of the amendments to The Births and Deaths Registration Act, 1992 and amend the Births and Deaths Registration Act by inserting a section dealing with the issuing of an amended birth certificate to the person concerned.
Madam Speaker the Bill before the House is another example of the fact that South Africa's Constitution is a living document that impacts on and improves the quality of life of all our people. It also bears testimony to the ANC's commitment in respecting freedom of choice and promoting equality. The Bill of Rights as contained in our Constitution guarantees amongst others the right to privacy, the right to dignity, freedom of choice and prohibits discrimination based on sex, gender and social orientation.
However in the absence of this Bill, these basic rights of individuals are ignored and violated. Furthermore we have the peculiar situation in South Africa that South African Law allows for sex change procedures, but denies a person who has undergone sex reassignment procedure to have their new sex reflected in the birth register and in their ID documents. The Bill before the House will correct this ambiguous situation.
Madam Speaker, in dealing with this Bill the Portfolio Committee on Home Affairs received a number of written submissions and held public hearings. The evidence brought before the Committee was compelling. It was clear from the numerous personal experiences that were relayed to the Portfolio Committee that the non-recognition of their sex status Impacts negatively on the lives and the rights that they ought to enjoy by virtue of our Bill of Rights as enshrined in our Constitution.
"The banks are the worst; they absolutely refuse to change your sex details. I will not have a credit card because can you imagine that every time you used your card you have to explain your personal life in public. "
"I have considered obtaining a false ID, but why should I be forced to become a criminal?"
"I want to conform and be normal, Home Affairs are branding us and attaching a number to us, it is similar to the past when our identity documents reflected our race groups, why are we being branded?"
Other practical implications include the inability to obtain a passport, to open a bank account, continuous harassment in respect of the utilisation of public facilities (public toilets) and producing a drivers licence. Though it might be true that the amendment of Identity Documents will not in itself end discrimination against transsexual people, it will however remove the last basis on which discrimination can be legally facilitated and legitimated.
During its deliberations, the Committee made certain amendments. The most important of these are the following sections: Section 1 (2) (b): This section deals with the documentation that must accompany an application. Where it originally required a report by the surgeon who carried out the procedure, it was decided to broaden this to any surgeon qualified and experienced in the field. The reason for this is a practical one, a practitioner might have relocated and it might be impossible to locate such a practitioner or they might become unavailable due to death or disability.
The original Section 1 (3) required the Director General to furnish the applicant with written reasons for refusal unless the reasons have been made public. It is clear that this could infringe on a person's right to privacy and dignity if such reasons are made public. The amendment now obliges the Director General to provide the applicant with written reasons for refusal and removes the scenario of making such reasons public.
Madam Speaker, the African National Congress supports with enthusiasm the Bill before the House. It was clear to us however, that the Department failed to consult broadly enough, specifically as far as consultation with interest groups presenting those directly affected by the Bill. Because of that, the Bill fails in making adequate provision for intersex persons, whose physical sex is ambiguous and objectively indeterminate from birth. According to Australian law "An intersex person is a person who, because of a genetic condition, was born with reproductive organs or sex chromosomes that are not exclusively male or female." The Bill as it stands affords no relief to those whose sex organs are ambiguous and who are unwilling or unable to submit to radical and indeed potentially life-threatening genital surgery. Intersex and transsexual people are different, their needs are different, and the discrimination they face is different. An intersex person is one who is born with reproductive organs that are neither exclusively male nor female, where as transgender identifies as a member for a different sex to the one they were born as. Both of these communities often face discrimination and it is important our laws reflect their different needs. The Bill provides for transsexuals, but fails to address the specific needs of intersex persons. This group now finds themselves in a legal limbo, unable to exercise civil rights, which are generally taken for granted. It is for this reason that the ANC will recommend to the NCOP to consider an amendment that will address the needs of intersex people. The Department was instructed during the process of public hearings to work on these amendments, but failed to do so in time. They should see to it that they are ready for this once the NCOP starts to deliberate on the Bill.
An amendment to the Bill should make provision for the intersex person's nominated gender. Following the submissions to the committee and legal developments in various parts of the world and specifically in the United Kingdom and Australia during the past six months, the ANC believes that a possible solution lies in stating explicitly in section 1 (1) that these measures applies to any person who is intersex. An intersex person can then further be required on application for alteration of their sex description that they provide medical reports corroborating that they are indeed intersex. Furthermore, an intersex person should be required to provide evidence in the form of a report by a psychiatrist, a social worker or other, in support of the application. Such a report should confirm and support the application that the applicant has been established stable and satisfactory, up to the present, for an unbroken period of at least two years, in the nominated gender-role corresponding to the sex description that is sought.
Madam Speaker, in conclusion I would like to share with this House an extract from a submission that we received: "As I grew up the feelings inside of me grew and I felt myself being torn between my love and loyalty to my family and the strange feelings inside of me. I could not talk to anyone, the very mention of the TS word brought out the worst in all those around me. I began to realise that I would never be accepted and that if I were to continue my journey to womanhood that I would loose my family and forever be a social outcast. Then something happened which changed my whole outlook on life, a new South Africa was born and with it came a new hope. To cut a long story short I overcame my fears and today my family and I are working to resolve our differences. It has not being easy for either of us but I am happy to say that we are still a family".
Madam Speaker based on the founding values of our democracy enshrined in our constitution of human dignity, the achievement of equality and the advancement of human rights and freedom, the ANC supports this Bill.