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HOME AFFAIRS PORTFOLIO COMMITTEE
9 September 2003
ALTERATION OF SEX DESCRIPTION AND SEX STATUS BILL: HEARINGS
Chairperson: Mr H Chauke (ANC)
Documents handed out:
Alteration of Sex Description and Sex Status Bill [B37 - 2003]
South African Human Rights Commission Submission
South African Human Rights Commission PowerPoint presentation
Commission on Gender Equality Submission
Clinton Howard's Submission
Sally Gross's Submission (awaited)
Erik Rood's Submission
Lesbian & Gay Equality Project Submission (awaited)
Cape Town Transsexual/Transgender Support Group request for extended submission period
Cape Town Transsexual/Transgender Support Group Submission
Simone Heradien's Submission
The South African Human Rights Commission supported the Bill as essential for the protection of rights to privacy, dignity and non-discrimination. It proposed two changes. Clause 1(3) suggests that reasons for refusing an application for the alteration of sex description may be made public; this would violate rights to dignity and privacy and the clause should be corrected. Clause 1(2)(b) requires that the medical practitioner responsible for the sexual reassignment procedure submit a report with the application; this should be amended to accommodate cases where the practitioner was unavailable.
The Cape Town Transsexual/Transgender Support Group submission objected to the exclusion of transsexual and transgendered people from the Bill's drafting process. The submission explained that there are many levels to sex reassignment procedures and the Bill erred if it required surgery before one could apply to have one's sex description altered. The Group made three proposals. The first was that no conditions be imposed on persons applying to have their sex description altered. The second, compromise, proposal was that the conditions relate to how the person lives his/her day-to-day life. The third, most limited, proposal was that references to sex organs be changed to sex characteristics as an interim measure, and that the Bill be subject to review.
Ms Heradien objected to the Bill's apparent requirement of surgery before an application for a change in sex description and the possibility of public statement of the reasons for an application's rejection.
The Lesbian and Gay Equality Project proposed that the Bill require some act, though not necessarily surgery, towards definition or change of sex description for an application for change of one's sex description. The Cape Town Transsexual/Transgender Support Group's suggestion that simply living the gender's lifestyle would suffice was too broad as proposed and should only apply in the case of intersexed persons. They suggested definitions for the Bill to allow the distinctions to be drawn and to accept different avenues of treatment. The Project proposed a minimum age limit of eighteen for applications for a change in sex description.
The Chair stated that the Bill was tabled after intervention by the Committee; the Bill had been lying in the Department for five years for no good reason. Department confusion meant that neither Adv Malatji (Chief Director: Legal Services, Department) nor Mr Mogotsi (Director: Legal Services, Department) were present at the hearings and no proper apologies had been made. In conversations with the Department it appeared that Adv Malatji is not familiar with the Bill and Mr Mogotsi is attending to a family emergency.
Mr I Pretorius (DA) raised a point of order. The Law Commission had submitted the report to the Department of Justice, then under Minister Omar. Was the delay due to Home Affairs or to Justice?
The Chair responded that the Bill had been lying in the Department of Home Affairs. Mr Mogotsi had confirmed that it had been finalised years ago. The Chair did not want to create the impression though that there had been a delay.
Mr Pretorius asked if the Committee would be consulting with medical experts in addition to legal experts and the presenters at the hearings.
The Chair responded that Mr Pretorius knew that experts would be called during deliberations on the Bill if necessary. The presenters should be allowed to make their oral submissions without further delay.
Mr R Pillay (NNP) stated that the Committee should continue with the programme; it could deal with these issues at the appropriate time.
Mr M Sibande (ANC) agreed that the Chair's suggestion should be taken up - the Committee should proceed to the submissions.
South African Human Rights Commission (SAHRC) Presentation
Ms J Cohen (Legislation Monitor & Parliamentary Officer, SAHRC) gave the oral presentation. The SAHRC welcomed the Bill. It handled a small number of complaints from people that had undergone sex reassignment surgery and called on the Department to take the steps to allow the alteration of a person's sex description on his/her birth certificate, thus allowing changes to other documents.
The Births and Deaths Registration Act of 1963 allowed changes to a person's sex description in the population register. This changed with the 1992 Act, though this allowed that persons that had commenced the sex change process prior to the Act could still apply to have their sex description altered. The change appears to have been based on a 1976 Court decision where the Court held that a person's sex could not be medically altered. This decision was based on a British Court decision in 1971, which developed the Ormrod test which held that a person's sex is an entirely biological matter and essentially fixed at birth. The Identification Act of 1997 allows changes to one's identity document, including identity number, only if the information in the document is incorrect. The identity number includes information about the person's sex. Thus, although sex change procedures are allowed, one cannot reflect the change in the population register, which violates various rights.
A study by Liberty (a UK human rights organisation) on integrating transsexual and transgendered people made the following findings. Twenty-three of the thirty-seven European States permit changes to a person's birth certificate. Ten European States have an unclear position - these are States that were part of the former Communist Bloc. Only in the United Kingdom and Ireland is sex reassignment surgery legal but not recognised. Canada, Australia, New Zealand and fifty of the fifty-two United States states allow changes to birth certificates. Namibia, Pakistan and Egypt all lack positive prohibition of recognition of sex reassignment. States that recognise transsexual rights have faced little controversy. Those States that object base the objection on 'moral' considerations.
The Liberty study was used in two cases brought against the UK in the European Court of Human Rights. Judgement was handed down in 2002 - the UK was found to have contravened rights to privacy and to marry and found a family. The Ormrod test was rejected on the basis that science had reached a state where we realise that it is not only biology that determines sex, but also psychology.
Failure to recognise sex reassignment has a significant impact on people's lives. The SAHRC submission cited several examples from cases brought before it. For example, since sex is reflected in one's identity number, transsexuals often experienced problems at banks and faced having to explain the situation in a public setting. Person's rights to privacy, dignity and non-discrimination are thus violated. This infringement of rights serves no purpose, has a substantial effect on people's lives and can easily be changed.
The SAHRC proposed two changes to the Bill. Clause 1(3) includes the words 'unless such reasons have been made public', referring to reasons for refusal of an application to have one's sex description changed. Making the reasons public could infringe on a person's rights to dignity and privacy, and there is no reason for the words to be here. Further, persons should be provided with written reasons for a refusal in accordance with the Promotion of Administrative Justice Act, 2000.
Clause 1(2)(b) requires a report 'prepared by the medical practitioners who carried out the procedures and applied the treatment.' This presents a problem when the medical practitioners are unavailable whether because they have left the country and are impossible to locate or cannot provide a report due to death or disability. The Bill should make provision for this, with the addition of words such as '...or a medical practitioner in the field with experience in the carrying out of such proceduresâ€¦'.
Failure to amend the Births and Deaths Registration Act, 1992, in order to reflect the sex description of individuals whose sex description has changed could lead to many constitutional challenges, as has happened elsewhere. The SAHRC thus called on Parliament to pass the Bill speedily.
The Chair thanked Ms Cohen for an excellent presentation. He asked how the Commission handled problems with the Department, banks, and so on. It appeared to be a matter of ignorance and lack of understanding.
Mr Cohen replied that the SAHRC dealt with complaints that came through its complaints department. The complaint against the Department related to its failure to amend the birth register. Banks are entitled to discriminate under the current legal situation. The Commission had put pressure on the Department to move the legislation along. The SAHRC provided education in anti-discrimination training, though this was of a general nature and not specifically targeted at discrimination against transsexuals.
Chief K Morwamoche (ANC) asked for clarity on the funding of changes to the register, the surgical procedures and the court process. Would special courts be necessary for the court process?
Ms Cohen replied that the SAHRC had a case where the state had funded a male to female sex reassignment, after a lengthy approval process, and another female to male case where the person was paying for the procedure himself. Where the funding came from depended on the person's situation. Similarly, in court procedures, a person would be entitled to apply for legal aid if s/he satisfied the means test. One hoped that cases would not have to go to court, but if they did, the person would have the same rights as any other litigant. The SAHRC had not applied its mind to the question of whether special courts would be necessary.
Mr S Swart (ACDP) asked for clarity on the UK position after the European Court of Human Rights decision. Was the government continuing to litigate the case?
Ms Cohen replied that the case was decided in July 2002 and thus was relatively recent. The UK is required to change its legislation by the ruling, which held that the matter was not within the 'margin of appreciation', or it would violate its European Union duties.
Mr Swart asked if Ms Cohen could explain the reference to 'evolvement through natural development'. What did it mean and is it necessary?
Ms Cohen replied that in her research she had found a case of a South American family with a dominant gene such that male children appeared female until puberty when they grew penises and their testes descended. She could not say whether this was what the drafter had in mind.
Mr Pretorius asked if the SAHRC agreed with the Gender Commission's position on respecting privacy.
Ms Cohen replied that she had not read the Gender Commission's submission.
The Chair asked that members restrict their questions to the submission by the SAHRC. Presenters may not have had access to all the submissions that members had access to.
Mr Pretorius noted that 'sex change' had been used in one or two instances but that the SAHRC submission referred usually to gender reassignment or realignment. Was there any significance to this?
Ms Cohen replied that the SAHRC had no fixed position on terminology. The legislation was needed to eliminate discrimination and allow the population register and birth certificate to reflect a person's gender. Later presenters might want to address the issue of terminology.
Ms A van Wyk (ANC) asked if the court process was ideal for appeals. Usually, when a Director General refused an application, one could appeal to the Minister or to a Committee. Going to court might put the application in the public domain.
Ms Cohen replied that if a procedure were proposed that would enhance protection of the rights to privacy and dignity then the SAHRC would support it. One had to take the social context into account - the power of the law is often out of reach because of prohibitive costs. The SAHRC would support further internal procedures if this made the process smoother.
Mr Sibande noted that Ms Cohen had referred to two Acts - the Births and Deaths Register Act of 1963 and of 1992. Was the process of changing sex description previously authorised?
Ms Cohen replied that the 1963 version allowed post-operative transsexuals to have the birth register amended. The 1992 Act removed this provision, except for those that had commenced the procedure already. The change was based on the Ormrod test-based 1976 decision.
Prince N Zulu (IFP) expressed concern that his question might not be acceptable. He asked if fertility is affected by the surgery.
Ms Cohen replied that she did not have the expertise properly to answer Prince Zulu's question. She noted that male to female transsexuals cannot bear children and would not be in a position to impregnate someone. In her research, she found that there are many categories of sex organs and characteristics which made answering the question complex.
The Chair stated that the Committee would consider the SAHRC's suggestions.
Cape Town Transsexual/Transgender Support Group submission
Mr E Smit (member of the Support Group) gave the oral presentation. He stated that the Group had asked for a two month extension because they had only received the information very late. One of their members had been trying to comment on the Bill for three years with no success.
The Law Commission did not consult any transsexual organisation in compiling their report, thus excluding the primary affected parties. The literature used in the report was largely from the 1970s and often discriminatory; this report was used in drawing up the Bill.
The Support Group's submission should be regarded as a provisional oral presentation since they did not have sufficient time to research the issues widely and consult experts. Further, there was symposium starting that day that would produce many important relevant documents. The legislation should not be rushed.
The Support Group is probably the only one of its kind in the country. They object to the terms transsexual/transgendered and preferred simply to be referred to as men and women. A study in the Netherlands estimated the incidence of transexuality conservatively at one in 11900 in men, and one in 30 thousand in women.
Transition takes many years and varies from case to case. From methods as simple as binding and packing to hormonal and surgical treatment. Non-medical approaches included changing one's name, use of pronouns, the clothes one wore - generally effecting a change in one's appearance. Some people live as the other sex simply by doing this. Hormonal treatment could take a number of years and most people live as the other sex just on this treatment. In response to Prince Zulu's question, he noted that after a few months of hormonal treatment, one became infertile. Surgical treatment required skilled surgery, often multi-stage, and post-operative care.
The group regarded themselves as having medical conditions, not pathological conditions. They noted that medical aids do not cover sex reassignment procedures and that state hospitals were suspending provision of the procedures. It is a human right to alter one's gender - the role of psychologists and medical practitioners in this should be supportive.
The Bill focused on alteration of sex organs and assumed that a full sex change is possible. It appeared to demand that one go through all the procedures in order to alter one's sex description. Appendix 1 to the Group's submission is an affidavit by a female-to-male lawyer explaining why people should not have to go through the full procedure. Appendix 2 to the submission is a case history of a female-to-male phalloplasty and the complications around it. There are many accounts illustrating the low rate of success of the procedure and often its severe implications. There is no medical rationale for linking legal recognition of a person's sex to a particular procedure. Requiring a surgical procedure does not adhere to international medical practice. Further, South Africa is a developing country and the emphasis is on basic health care.
The Support Group made three proposals on the Bill, each comprising a number of changes to the Bill. The first proposal was that the Bill place no conditions on persons that wish to change their sex descriptions. The Group recognised that this proposal was unlikely to be accepted, but noted that society appeared to be moving towards a non-gendered legal space.
The second proposal suggested altering the conditions imposed. Clause 1(1) should be altered so that the basis for an application to have one's sex description altered is that one is living as a member of the sex corresponding to the sex description under which the person seeks to be registered. Clause 1(2)(b) should be altered so that the application must be accompanied by a declaration by the applicant that s/he has lived for a year as a member of the sex corresponding to the sex description under which s/he wishes to be registered. Clause 1(2)(c) should require a report by a social worker, psychologist or medical practitioner including details about how the applicant identifies and lives as a member of the sex referred to in (b). This would give legal recognition to the person's real-life experience. The suggestion is based on the idea that what is central in day-to-day living is how one presents oneself and not what genitals one has. The Group considered a year of living as a member of the sex would suffice to show that the person had become established in that sex identity. The length of time required had to balance ensuring that the sex identity was established against the many difficulties and risks associated with not having proper identity documents. Further, 1(2)(c) requires that the professional report include details on the applicants identification and life as a member of the sex corresponding to the sex description under which the person wishes to be registered. Sub-Clauses (3) to (8) of Clause 1 should be moved to a separate Clause, entitled 'Refusal of application by the Director General', with consequent renumbering. This would aid clarity - there is potential for confusion since sub-Clauses (6) to (8) do not explicitly state that they have reference to sub-Clause (3). In Clause 1(3), the phrase 'unless such reasons have been made public' should be deleted. Applications should be treated confidentially. Further, the Group noted that the Director General should become knowledgeable about sex transition issues if s/he is to decide applications. They wondered what 'additional information and proof' the magistrate could call for under Clause 1(6). If this referred to documents such as payslips, bills and the like made out to the person in the sex corresponding to the sex under which s/he seeks to be registered then one had to bear in mind that obtaining documents made out in this way presented a problem since identity numbers reflect one's sex description. Clause 1(7) should require that the Director General not only alter the applicant's sex description but also issue a new identity number and document reflecting the altered sex description. Many computer systems use this feature of identity numbers to check or even set a person's title and the discrepancy can lead to complications. Ideally, any reference to sex in the identity number should be removed. Clause 2(2) should similarly be altered. In Clause 3, 'an amended birth certificate' should be replaced with 'a new birth certificate reflecting the altered sex description'. It is unclear what 'amended' means - would this include the old details, for example? Clause 4, the short title of the Bill, should be altered so that the Bill's title is the 'Sex Recognition Act'. This is because the Act may have further reaching consequences than simply altering the person's sex description. Future amendments might include dealing with matters specific to the rights of transsexual/transgendered and intersexed people. This also matches the UK Bill, which is titled the 'Gender Recognition Bill'. The Group also suggested that some mechanism to recognise changes in the sex identity of foreigners be included.
The third proposal by the group involved less extensive revision of the Bill. The Group would only support this if the Bill were passed by the end of 2003, and a process were immediately set in motion to revise the Bill with transsexual/transgendered people included on the working group. In Clause 1(1), 'sex organs' should be replaced with 'sex characteristics' and a reference to intersexed persons should be added. The phrase 'resulting in a sex change' should be deleted. Referring to 'sex characteristics' would cover secondary sex characteristics, which are significantly altered by hormone treatment. This is also the phrase used in the draft UK Bill. This would remove the requirement that people have surgery. The term 'sex change' should be removed since it is based on popular misconception. At most one can achieve some visible similarity to the sex organs of biological males and females. Further, affected people dislike the term 'sex change' since they see themselves as bringing their bodies into line with the sex that they already are. The inclusion of a reference to intersexed people is supported in Ms Sally Gross's submission. Clause 1(2) is modified so that (b) refers to sexual characteristics and to only one report by a medical practitioner, not to 'reports' as in the Bill, on the nature and results of any procedures. Clause1(2)(c) is altered to apply only to persons that have undergone medical or surgical treatment, and the reference to sex appearance changed to sexual characteristics. Clause1(2) has (d) and (e) added to deal with the case of intersexed persons. (d) requires a medical report confirming that the applicant is intersexed; (e) requires a report from a social worker or psychologist corroborating that the person has lived for a year as a member of the sex corresponding to the sex description under which s/he seeks to be registered. The following changes proposed in the second proposal are repeated in this proposal: to move sub-Clauses (3) to (8) of Clause 1 to a separate Clause; and the changes to 1(3), 1(7), 2(2) and 3.
Ms Simone Heradien's submission
Ms Heradien gave the Committee a brief account of her experience as a transsexual - pre- and post-operative. She proposed that the title of the Bill be changed to the 'Gender Recognition Bill'. Transsexuals do not alter their sex, but see themselves as born the gender that they are. Clause 1(1) excludes pre-operative transsexuals from changing their sex descriptions. This is problematic in that it forces people to undergo surgery in order to change their sex description. This is especially inappropriate in South Africa given the enormous cost of so-called sex-change surgery. Persons may also be unsuited to surgery for medical reasons and intersexed individuals may prefer not to have surgery. The sex reassignment process is a three-phase or triadic one. The first phase is living as the gender to which one is to be assigned; the second phase is hormonal treatment; the third phase, surgery. Medical professionals assist and determine how far through the phases a person should go and what treatment is appropriate in the phases. Refusal to recognise transsexual persons' reassigned sex serves no purpose and impedes their ability to live and work in their new gender. In Clause 1(2)(b) 'medical treatment' should thus be replaced with 'medically appropriate treatment as prescribed by a medical practitioner'. In Clause 1(3), the phrase 'unless such reasons have been made public' should be deleted - applications should be treated in complete confidence.
The Chair thanked the presenters for the detailed proposals on the Bill and the information on transsexual experience. It was unfortunate that the Department was not present. They were supposed to engage with the presenters and Committee. He would ask for a written explanation for their absence. The State Law Adviser would advise the Committee accordingly.
Chief Morwamoche asked why the Support Group proposed augmenting the requirements for applicants by adding a requirement for a report by a social worker or psychologist.
Mr Smit replied that the focus of the group's proposal was on the lived experience of persons. The report would include details on this and are not necessarily medical - they included interactions with other people, and so on. A social worker or psychologist would be better qualified to give this kind of report. If the person had started medical treatment then this information could be included. If surgery were not a requirement, the report need not be from a medical practitioner.
Chief Morwamoche asked the presenters to comment on the process of the Director General's decision or magistrate's order.
Mr Smit replied that it would be problematic to have an open process in courts. The Committee should consider whether to require a person to go to the courts if the Director General refused.
Mr Pillay asked if the Support Group had given thought to the question of monitoring if the Bill were changed to refer to sexual characteristics. How would monitoring take place? Criminals would be able to abuse the provision without proper monitoring.
Mr Smit replied that one would have the same problem if medical reports were required - one could get false medical reports. People would not be inclined to change sex lightly, especially with the stigma attached.
Ms Heradien added that she had lived as female from when she was 18, only having surgery at 31. She was accepted as female in her community and by government departments. She was female before the surgery - it did not make her more female than she was before it.
The Chair observed that approval of her choice depended on community acceptance - the community contributes to one's identity.
Ms Heradien agreed with the Chair. The triadic procedure had been accepted.
Mr Smit noted that one could provide additional proof of one's life as a member of the gender through payslips, bills, and so on. These are often difficult to obtain, but one could manage to do so with some institutions. This could be evidence for monitoring.
The State Law Adviser pointed out that Clause 1(6) stipulated that the appeal would take place in chambers so it would not be in open court. The additional proof the magistrate could call for did not relate to documentary evidence - it could be oral evidence from one's family or community.
The Chair asked the State Law Adviser to comment on the phrase 'unless such reasons have been made public' in Clause 1(3).
The State Law Adviser replied that she could not comment on the purpose of the phrase.
The Chair stated that the presenters had made key proposals. The Committee could not respond directly on all of them, but would note the proposals and consider them in deliberations. That the Department was not present did not limit the Committee's power to change the Bill. The gender/sex distinction is a serious issue and the title of the Bill should be looked at.
The State Law Adviser responded that according to the Law Commission report, gender is more psychological than biological. The Bill dealt only with formalities - it did not dictate social, moral and mental issues. The problem the Bill addressed was that the records on the register were based on biology. The Bill was proposed to allow changes to sex description.
Mr Smit stated that transsexuals did not just want their psychological gender changed, but also the physical sex description. The terms used vary from country to country.
Mr Sibande noted that Ms Heradien had raised the matter of intersexed persons that preferred not to have surgery. People would be able to take advantage of provisions for them.
Ms M Maunye (ANC) asked for an explanation of the terms intersexual and transsexual.
Mr Smit replied that intersexed persons are born with ambiguous genitalia - it is not clear at birth if the child has male or female genitals. Doctors often reacted to this with surgery. In such circumstances it is easiest to make the child appear female and so this is what is usually done. Transsexual persons appear one sex at birth but realise as they grow up that they are in the wrong body. This realisation may take place at any stage from very young to adult.
Ms Maunye asked if the Support Group had followed up on why state hospitals had stopped offering sexual reassignment treatment.
Ms Heradien noted that medically, a number of transsexuals could not have surgery because of medical conditions. It would be discriminatory not to recognise them. Groote Schuur does not offer surgery because of lack of funding and the lack of a suitably trained doctor. They do have a psychiatric team and could assist people with the first two phases of triadic treatment.
Mr Smit added that state hospitals had long waiting lists and strict screening processes for treatment.
Ms Maunye asked about the proposal that non-South African citizens be supplied with identity documents to recognise their sexual reassignment. South Africa is a developing country and had to limit costs.
Mr Smit replied that it was not clear what happened with foreigners with permanent residence. The UK Bill sought to provide a mechanism for foreigners. The Support Group had raised the issue because the situation could be a problem for foreigners. When it came to costs - the foreigners could pay for the documents.
The Chair responded that foreigners do not appear in the population register, so the Bill did not apply to them.
Mr W Skhosana (ANC) noted that there was no age limit for applications in the Bill and none had been put forward. Did the presenters have any suggestions on this?
Mr Smit replied that one did get children that consistently showed that they were of the other sex. Treatment would allow suppression of the development of secondary characteristics at puberty. In such cases, parents would be involved. He did not know how an application by a transsexual/gendered child would be handled in law.
The Chair stated that the new dispensation allowed greater freedom. The Bill is good legislation in the right direction. People should recognise the change and keep in contact with the Committee on the impact of the legislation; his office is open to submissions and engagement on the issues. He was concerned that transsexuals had been left out of the process. He would raise this concern and the proposals would be considered. The law should address these challenges. People did not want to accept the challenges. South Africa is a free and fair society, with the best constitution and bill of rights. Pieces of legislation such as this Bill were beginning to enforce the rights and values in these.
Lesbian and Gay Equality Project submission
Mr E Knoesen (Director, Lesbian and Gay Equality Project) gave the oral submission. He pointed out that the allowance for changing sex description in the 1963 Births and Deaths Registration Act had a sinister aspect to it. Sex changes were used by the apartheid government as a means of oppression - such as in forced sex changes in the defence force.
The Project's interest was to see that legislation was passed that would improve freedom and that was implementable. Its approach was thus more conservative. They drew a distinction between gender identity and sex description. The former is fluid and not something the government should regulate. The Project was not convinced that international trends were useful since other countries did not have the constitutional situation of South Africa. Bills from other countries often had to make up for gaps in their frameworks that are not present in South Africa's. The Bill had a very specific function - other ails of transsexual and transgendered persons may be better addressed elsewhere. The Bill was designed to cater specifically and exclusively for changes in sex description. People should have the right to describe their sex properly. The Bill's aim was not to allow people to change their gender identity description as they wanted. It should be acknowledged that the Bill is progressive.
He noted that people do not choose to be transsexual or transgendered. Rather, nature had imposed a different sexual identity on them.
It would not be appropriate to delay the legislation because of difficulties. This would do an injustice to people that would benefit from the legislation. One needed to change the law in some cases to change society and this was one of those cases.
Gender identity is distinct from sex description. The former includes things such as caring for children, which might traditionally be thought part of a female gender identity. The concept of gender identity is more fluid now than in the past. It would not be appropriate for the state to regulate this. Although gender identity should be part of the criteria for a change in sex description, it should not be sufficient. The qualification need not be surgery, but should involve an act to define or alter one's sex description. Living a particular gender lifestyle is not sufficient - gender is too fluid a concept.
South Africa has a higher than average rate of intersex children. It is a human rights violation to allow doctors to impose surgery on intersex infants. There is no disadvantage to allowing them to continue as intersexed persons. Parents were often not given an opportunity to engage on the issue.
The Project did not support requiring surgery of intersexed people - this is an overly onerous requirement - but merely requiring two years of living in the gender role. In the case of transgendered/transsexual people, some treatment, but not necessarily surgery, should be required for qualification to apply. Two years is not an onerous time requirement for living in the gender role. If it were too easy to change sex description, it could become too burdensome for the Department.
The Project proposed introducing definitions to the Bill. Definitions of 'Sexual Realignment Treatment' and 'Sexual Realignment Surgery' would accommodate the different avenues of treatment available. Definitions of 'Transsexual' and 'Intersex person' would accommodate their different cases - with the lesser requirements suggested for the latter class. Definitions of 'Gender Identity' and 'Sexual Description' would show the focus of the Bill - the latter. Experts consulted by the Project advised them that changing sexual description is very different from changing gender identity.
The Project supported having a similar process for the sex description of permanent residents in their identity documents.
In response to Mr Skhosana's question on age, Mr Knoesen stated that the appropriate age would be eighteen. This would align the Bill with other laws. There is no significant disadvantage in having to wait until eighteen. The Committee may want to consider allowing earlier applications with the consent of parents. Studies show that sexual identity is not completely fixed prior to sixteen. So the lowest age considered is sixteen. The Committee should err on the side of caution and set the age limit at eighteen.
The Chair thanked Mr Knoesen for the presentation and expressed his appreciation for the understanding of South Africa's history in it.
Ms Van Wyk raised the age issue. She noted that one could apply for identity documents at sixteen, which might raise concerns. She did not wish to differ with Mr Knoesen but wondered if he had further comment.
Mr Knoesen responded that whilst one could apply for an identity document at sixteen, a change of sex description should be well considered. Research suggested that young people are not ready to make this decision. It would be better to wait until eighteen, as one had to with many other decisions.
The hearing was adjourned.
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