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HOME AFFAIRS PORTFOLIO COMMITTEE
10 September 2003
ALTERATION OF SEX DESCRIPTION & SEX STATUS BILL: PUBLIC HEARINGS
Chairperson: Mr Hlomane Patrick Chauke (ANC)
Alteration of Sex Description and Sex Status Bill [B37-2003]
Sally Gross's Submission
A submission was heard on intersexuality - an issue that had been ignored by the Alteration of Sex Description & Sex Status Bill. The Bill as it stands implies that what will be needed for the registration of a sex description is evidence that the appearance of the sex organs is typical of the sex description in question, be it "male" or "female". One effect of this, would be to make genital surgery a prior condition for the registration of a sex description in the case of people born with ambiguous sex organs. It affords no relief to those whose sex organs are ambiguous and who are unwilling to submit to radical genital surgery.
The drafters will incorporate the issue raised regarding intersexuality plus clarify terminology, provide definitions, outline an appeals process and attend to other issues raised by the public hearings. They will return with a re-worked Bill on 17 September when it would be voted on.
Submission by Sally Gross
Ms Sally Gross submission dealt with the issue of people who are intersexed and thus have ambiguous sex organs. She submitted that the Bill as it stands implies that what will be needed for the registration of a sex description is evidence that the appearance of the sex organs is typical of the sex description in question, be it "male" or "female". One effect of this, would be to make genital surgery a prior condition for the registration of a sex description in the case of people born with ambiguous sex organs. It affords no relief to those whose sex organs are ambiguous and who are unwilling to submit to radical genital surgery.
An ancillary concern was with the use of the loose colloquial term 'sex change' in Clause 1(1) where she suggested a better term would be "gender reassignment' or gender realignment' (see submission)
Mr Chauke noted that the issue of intersexuality had not been discussed. The Committee would need to include this issue.
Ms Chohan-Kota (ANC) asked about the differentiation between transsexuality and intersexuality. When the Bill had been drafted it had envisaged people who were transsexuals. Ms Gross's submission had been useful as her recommendations dealt with intersexuals who had been excluded. The two issues had been tossed together in one clause. She suggested it would be better to separate the two issues into different clauses that were directly related to intersexuality and transsexuality because they had different criteria.
Ms Sally Gross agreed that it was one way to remedy the exclusion of intersexuals in the Bill. Her submission had focused on intersexuality and had specific proposals in order to assist with the Bill getting finalised quickly. If the Bill sought to protect intersexuals and transsexuals, it still needed to include support for when there was a change of gender roles. The criterion of identifiable male or female sex organs was too strong and the provision needed to include those living in gender roles with no surgery. It was an issue of dignity. Splitting the section into one for transsexuals and one for intersexuals was an option because they were different issues.
Mr P N Zulu (IFP) commented on the havoc that must be wreaked when surgery is imposed on intersexuals. This was a new term for him and he was concerned about the need for the extension of the issue into the rural areas. He asked if any research had been done on the issue in rural areas and to what extent rural people were involved in any discussion on the subject.
Mr R Sikakane (ANC) said that the submission had been very interesting and it was clear that the Bill was unjust towards intersexuals because intersexuality was a genetic inheritance. The aim of the Bill was not to force people into surgery. However, legally the sexual organs did need to be identified. How would identification take place because the Bill sought to deal with sexual change from one gender to another with the director general taking a decision on the issue? How would the new system work with intersexuals and how would fraud be managed?
Ms Gross explained that her identification document said she was female. The protocol had been to identify her as female. Intersexuality was not a very modern term. It had been used in the scientific community for more than a century. The issue of intersexuality was also known as hermaphroditism or fusion of a man and a woman. The term 'intersexuality' meant ambiguous sexual characteristics and this captured the full extent of the condition. People did not tend to talk about the condition openly although it was fairly common amongst humans and animals.
She was not able to answer the question dealing with the rural areas although of there had been two cases in the Western Cape and the individuals involved had come from rural areas. Their cases had been treated as medical emergencies when discovered and traumatic surgery had been imposed. Due to stigmatisation and the embarrassment of families, work needed to be done around awareness in an attempt to prevent social alienation. Society or what she called "social anarchy" demanded the need for female and male identification. However was it correct to force life-threatening surgery on an individual born with ambiguous genitalia in order to fit into the social structure. It was an issue of cultural conformity and an attitude of prejudice as opposed to an issue with the body.
Ms A Van Vyk (ANC) admitted that the absence of definitions in the Bill was a shortcoming of the Bill. Ms Gross was asked to give input on the definition of intersexuality and for the State Legal Advisors (SLA) to be directed to look at the issue.
Ms Gross noted that the definition of intersexuality was: atypical (unique), congenital (from birth), physical sexual differentiation.
Mr W Skhosana (ANC) said he agreed with Ms Chohan-Kota's suggestion. He questioned if the time limit of two years was sufficient due to the huge impact of gender-bending for those concerned.
Ms Gross explained that the issues of transsexuality were not her given brief and so the question was difficult to answer. The issue was incomprehensible to her because most intersexuals were unable to have children and did not have any sexual orientation. She agreed that undergoing a change of gender role would wreak havoc on families but the figure of two years was taken from the British standards of care, which dealt with the care awarded to transsexuals to make them comfortable and ensure that they could live. This was the protocol in most metropolitan countries and therefore it made sense to consider it.
Mr Chauke was concerned that the estimation of numbers of intersexuals was based on the United States plus there was a claim that South Africa had the highest numbers. Clarity was needed on this issue. Mr S Pillay (NNP) agreed.
Mr Chauke asked for comments from the State Law Advisors and drafters.
Ms Ayesha Johaar (SLA) explained that the State Law Advisors were prepared to take direction from the Committee on what to omit and include.
Mr Chauke clarified that the Committee needed the State Law Advisors to highlight the issues that had been raised and to give the Committee direction as to what they needed to focus on.
Ms Johaar said that what had emerged from the public hearings was that the main issue had been that the terminology used was unclear. This needed to be sorted out in order for the Bill to be clear on what it would be legislating.
Mr I Pretorius (DA) suggested that the Committee should consult experts to get more clarity.
Mr Chauke said that the proposal was noted but asked Ms Gross to finish her presentation before deliberations started.
Mr Mogotsi (Department of Home Affairs: Director of Legal Services) stated that the submission from Ms Gross had been excellent. He pointed out that the legislation had come into being in 1992 and it had concentrated on issues only then on hand. The proposals from the submissions would be looked at and the very important issues would definitely be taken into account.
Mr Chauke thanked the department for their input.
Mr K Morwamoche (ANC) asked Ms Gross her opinion on the Bill's silence on the change of a name to coincide with a sex change. Her submission had focused on British law and British law had a separate register for people who received a sex alteration. What was her view on this?
Ms Gross explained that the change of name was pretty simple in South Africa. There was an assumption that the change of gender went hand in hand with the change of gender but this was not the case. There were already measures and regulations in place that dealt with the change of name and these were very simple. Basically if the system was working, why change it?
She explained that transsexual law in Britain was based on Corbett vs. Corbett 1970 that prevented the change of sex once sex assignment had occurred. The Act had since been amended but she was not sure about postoperative sex description because this Act dealt with sex assignment at birth. The Joel Holliday case had dealt with intersexuals for the first time, which was the ruling that overturned Corbett vs. Corbett.
Mr Chauke thanked Ms Gross and stated that proposals from submissions would be handed over to the Department in order for them to incorporate the suggestions. He noted that the concerns had been on the terminology, the public-private debate (how to deal with such a private matter as genitalia at such a public level) and the inadequate appeals process (what would happen after the Director General had refused because the Bill did not state if the Minister or the courts should be approached thereafter).
He continued that it was clear that the Committee would not be able to adopt the Bill today because of these issues. There had been a proposal to bring in experts but the Committee had to be clear on what issues. The inputs had all been very informative and they needed to be discussed. The issue of consultation had been raised with a number of organisations submitting that they had not been consulted. The Committee requested an explanation of the consultation process from the department. Members were asked to give a way forward to deal with the discussion.
Ms N Mahlawe (ANC) questioned whether the Bill had to be fast tracked - was there not time to do proper consultation before the Bill is finalised?
Mr Chauke noted that the Bill was urgent in the sense that it had been sitting in the department for seven years. The Department's consultation process needed to be clarified as to how many organisations had been approached. The Bill was not being passed now because of the issues raised by the submissions had to be included.
Mr Pillay referred to the Point 4 of the Bill's Explanatory Memorandum where it stated that the Bill would bring new responsibilities to the department including financial responsibilities. What were these financial responsibilities?
Mr Mogotsi explained that whenever there were new responsibilities there were always financial implications because of increased revenues and increased work.
Mr Pillay felt that this answer was treating the issue as inconsequential. He wanted specific information on what the increased financial resources were. Ms Van Wyk agreed, adding that if a department cites financial implications they usually cost the financial implications. In this memorandum, there was no figure.
Mr Mogotsi admitted that he could not provide a direct figure because he dealt with legal issues and not with implementation.
Mr Chauke pointed out that when members raised a concern there should be an adequate response. Bills should be drafted with the knowledge of the financial implications. If the department could not answer the Committee who could? The Department should also know the implications of not passing the Bill. The Committee was not happy with the way that Home Affairs dealt with issues. Before the Committee could pass this legislation, the Committee had to deal with the issues raised in the submissions.
Mr Sikhakhane said that the Committee should address the issues raised by Ms Gross - they should either drafted into a new piece of legislation or included into this legislation.
Mr Morwamoche asked for clarity about the silence of the Bill on the change of name once there had been a change of one's sex status, plus its silence on the last four digits of the identity document (which indicate sex status), the absence of an age limit for the operation and a limit on how many times the operation could take place.
Mr Mogotsi commented that the Bill was not silent but rather that the Identification Amendment Act dealing with the population register dealt with some of these issues.
Adv Malatji continued that there was already a law for changing one's name. This Bill was for change of sex status only. Names were not gender specific and the change of name was not a prerequisite or a requirement for the change of sex status. On the issue of conducting an operation, no surgery could occur on a child without the consent of a parent. Monitoring of this issue was generally provided in the general application of the law. The Bill worked on the assumption that the alteration of sex status would occur once. With regard to the identification document, it would be amended to accommodate the change when it occurred.
Ms van Wyk questioned the role of medical practitioners in Clause 1(2)(b). The present Bill does not allow for the use of medical practitioners other than the practitioner who did the initial diagnosis. This requirement did not take into account circumstances that could make the practitioner unavailable such as death or migration. It should be that any medical practitioner qualifies. In Clause 1(3) why was there a need to make the issue public. For denials and appeals, the matter should be directly referred to court procedures and involve the Minister.
Mr P Sibande (ANC) asked about the issue of consultation and if there was still a provision for submissions. Who was supposed to facilitate the process on the issue of consulting specialists?
Adv Malatji explained that they had consulted extensively. There was always a provision from the Director General to the Minister. It was not a big issue because the Director General reported directly to the Minister.
Mr Chauke clarified that the Director General was a delegated function and if an application was denied, would the Minister know about it?
Mr Mogotsi replied not necessarily.
Mr Chauke explained that the appeal process should be one that went from the Director General on to the Minister.
Mr Pretorius asked if requesting the legal drafters to consult regarding changes to the Bill, would not make the issue become even bigger. He added that the emphasis on alteration discriminated against those who did not want to have an operation.
Ms I Mars (IFP) agreed with Mr Pretorius and wanted clarity on whether the Committee was restricting the categories of people dealt with in the Bill or were they widening the scope.
Mr Chauke said that expansion was needed.
Ms Van Wyk pointed out that what the Committee was dealing with was not defined in the Bill. The Committee did not want to force people to have the operation therefore the Bill needed to be re-worked. The Department would have to go and deal with the issues of definition, appeals, cost and the like and then report back to the Committee.
Mr Chauke agreed.
Ms Mahlawe commented on the terminology of the Bill and proposed that the name of the Bill be changed and the term 'Gender Reassignment' used in order to remove the stigma attached. This change of name would cover everyone - both transsexuals and intersexuals.
Mr Chauke ruled that the Department return with a re-worked Bill on Wednesday 17 September when it would be voted on. Meeting adjourned.
[Afternoon session: Deliberations on Electoral Laws Amendment Bill - see separate minute]