Electoral Laws Amendment Bill, Alteration of Sex Description and Sex Status Bill: voting

With regards to the Alteration of Sex Description and Sex Status Bill [B37B-2003], all of the proposed amendments were based on the presentations by Sally Gross (on behalf of intersexed persons) and Estian Smit (representing the Cape Town Transsexual/Transgender Support Group) at the 30 September Committee meeting. The Committee unanimously passed the Bill with the proposed amendments.

MINUTES
The Chairperson decided that the Committee would deliberate on the Electoral Laws Amendment Bill by discussing it clause by clause.

The Democratic Alliance referred to the Long Title of the Bill and proposed the deletion of "handicapped voters" and replacement with "voters with disabilities". The Committee agreed.

The next amendment pertained to prisoner's rights to vote in Section 7, Clause 24B.
(1) In an election for the National Assembly or a provincial legislature, a person who on election day is in prison and not serving a sentence of imprisonment without the option of a fine and whose name appears on the voters' roll for another voting district, is deemed for that election day to have been registered by his or her name having been entered on the voters' roll for the voting district in which he or she is in prison.
(2) A person who is in prison on that election day and is serving a sentence of imprisonment without the option of a fine may not vote.
(3) A person who is in prison on election day may only vote if he or she is
(a) not serving a sentence of imprisonment without the option of a fine, or
(b) awaiting trial

Discussion

Section 7
Ms C Botha (DA) said that her Party opposed the principle of the clause that categorised prisoners as that conflicted with Constitutional civil rights. She asked the Department of Home Affairs for an explanation as to why the rights for prisoners to vote was taken away. She recalled a Constitutional court judgement from 1999 that decided that prisoners should in fact be allowed to vote.

Adv Malatji (Department of Home Affairs) said that he could not remember if all prisoners were allowed to vote in 1999 and added that all categories of prisoners should be dealt with in the legislation.

Ms M Themba (ANC) asked to rephrase the clause in question but later changed her mind.

Mrs J Vilakazi (IFP) abstained from voting on that particular clause.

Section 9
Ms Botha asked what the Committee had decided on the issue of people voting from overseas.

The Chairperson said that the only people allowed to vote while being out of the country were officials on government business. Everyone else would be excluded from voting.

Ms Botha asked for further explanation, specifically regarding cost implications.

The Chairperson said that a range of factors had contributed to that decision and that one of these was the cost implication. Other elements included security and the logistical issues of setting up proper infrastructure.

Mr Kellner explained that Section 9 dealt with special votes and created no distinction between people inside or outside of the country. The only exception was given in for paragraph (b), which allowed those absent from the Republic on Government service or members of the household of the person so being absent, to apply for a special vote.

Ms Botha argued that the right for people to vote while being outside of the Republic was taken away even though there was an opportunity and place of voting prepared for a small group of government officials. Such discrimination created a class of "special people" who worked for the government. The principle of such action was completely contradictory with the Constitution.

Mr J Tlhagale (UCDP) said his Party was also not satisfied with the explanation given by Department officials on that clause and as a result would abstain from voting on the Bill.

Section 10: Hours of voting
Ms Botha requested that the clause insure that there was no discretionary power given to extend the hours of voting unless for very specific reasons.

The Chairperson said that the clause intended to ensure exactly that.

Ms Botha was still concerned with a possibility of people coming to vote after 9pm (closing time) and being allowed to vote.

The Chairperson said there was a stipulation that if people were on the voting post premises at the closing time, they should be allowed to vote.

Adv Malatji asked the Committee to pay attention to the subsection (6) stating that "Voting at a voting station must continue until every voter has voted...". However, the extension of the voting hours would only be allowed in unavoidable circumstances.

Schedule 1A: System of Representation in National Assembly and Provincial Legislatures
Mr D Kgware (ANC) sought clarity on the meaning of the term "region" and whether that corresponded to a part or entire area of a province. In his opinion, the use of the term was ambiguous.

Mr Kellner (State Law Adviser) explained that the term "region" referred to the whole territorial area of a province. He also recalled that Mr Van der Merwe had already discussed that issue at the last meeting on 30 September. The term "region" was used in the case of the National Assembly, whereas "province" was used in case of provinces.

The Chairperson proposed to amend the definition of a "region" to read "means province" instead of "means the territorial area of a province".

Mr Kellner said that that form of the definition could become vague, as a word province could mean other things besides simply a territory, like the government of the province, the name of the province, etc.

Ms Botha said that she was completely confused by the Department's response. In her opinion there was no ambiguity in the meaning of the term province and it was understood that it simply referred to a territorial area.

There were no other comments or amendments presented and the Committee voted on the Bill.

Voting results of the Electoral Laws Amendment Bill:
ANC supported the Bill with the amendments.
DA opposed the Bill on the basis of clause 9.
NNP supported the Bill with the amendments.
IFP supported the Bill but had certain reservations on clause 9.
UCDP opposed the Bill on the basis of clause 9.

The Chairperson announced that the Select Committee on Social Services, having considered the substance of the Electoral Laws Amendment Bill [B54D-2003], agreed to the Bill with the proposed amendments.

Alteration of Sex Description and Sex Status Bill
The Committee then deliberated on the Alteration of Sex Description and Sex Status Bill [B37B-2003]. The same procedure was followed as with the previous Bill. All of the proposed amendments were based on the presentation by Sally Gross (on behalf of the intersexed persons) and Estian Smit (representing the Cape Town Transsexual/Transgender Support Group) that took place during the 30 September Committee meeting.

Discussion

Long Title
Mrs Vilakazi proposed to change the Long title to read:
To provide for the alteration of the sex description of certain individuals [in certain circumstances] who because of their conditions are grossly affected socially, spiritually, physically, psychologically; and to amend the Births and Deaths Registration Act, 1992, as a consequence; and to provide for matters incidental thereto.

The Chairperson said that all those circumstances were already clearly spelled out in the Bill and that there was no need to amend the Long title.

Clause 1: Application for alteration of sex description
Ms J Kgoali (ANC) proposed a change to subsection (1) by substituting 'sex organs' with 'sexual characteristics' and 'sex change' to 'gender reassignment' as well as adding another group of people to the Bill, namely the intersexed people. The new clause would then read as follows:
1(1) Any person whose [sex organs] sexual characteristics have been altered by surgical or medical treatment or by evolvment through natural development resulting in [sex change] gender reassignment, or any person who is intersexed may apply to the Director-General of the National Department of Home Affairs for the alteration of the sex description on his or her birth register.

The amendment was supported by the Committee without any comments.

Ms Themba noted that the same changes should be made in subclause (2)(b).
1(2)(b) in the case of a person whose [sex organs] sexual characteristics have been altered by surgical or medical treatment resulting in gender reassignment, be accompanied by reports stating the nature and results of any procedures carried out, and any treatment applied or prepared by the medical practitioners who carried out the procedures and applied the treatment, or by a medical practitioner with experience in the carrying out of such procedures and the application of such treatment;

The amendment was supported by the Committee without any comments.

The second amendment in subsection (2)(c) proposed the addition of: "in every case in which sexual characteristics have been altered resulting in gender reassignment, be accompanied by...".

Mr Tlhagale said that the UCDP supported the Bill with the amendments and excused himself for the remainder of the meeting.

Ms Botha said that her party completely agreed with the principles of the Bill. However, she had some reservations towards clause 1(2)(c). The essence of that section stated that somebody else could decide what gender a person was on the basis of what they looked like. Surely that decision should not rest with a medical practitioner. That subclause should be deleted or changed.

The Chairperson said that in her view, the report came from a medical practitioner but the decision itself rested with the applicant.

Both Ms Gross and Mr Smit voiced their concerns with having medical practitioners as the "gatekeepers" but for the sake of the success of the Bill, they suggested they leave that clause unchanged rather than create conflict.

Ms Botha suggested replacement of the term "sex appearance" with a different one because some persons might be males and appear as females and vice versa, but they were not necessarily transsexuals nor intersexed individuals.

The Chairperson proposed not to insert any new amendments to the above subclause that might complicate matters further.

Ms Botha pointed out that the subclause was grammatically incorrect.

Ms Gross and Mr Smit agreed to prepare formulation of the subclause such that it would be grammatically correct.

The Committee agreed to the principle of the subclause.

Ms Themba suggested the insertion of two new subsections, sections 1(2)(d) and (e):
1(2)(d) in the case of a person who is intersexed, be accompanied by medical reports corroborating that the applicant is intersexed;
1(2)(e) in the case of a person who is intersexed, be accompanied by reports from a qualified psychologist or social worker corroborating that the applicant is living and has lived stably and satisfactorily for an unbroken period of at least two years, in the gender role corresponding to the sex description under which he or she seeks to be registered.

The amendment was supported by the Committee.

Ms N Kondlo (ANC) proposed that the Director-General be accountable to the Minister when making the decision on whether or not to permit an applicant the right to alter the sex description on his or her Birth Certificate. The new subclause would read: "(4) If an application contemplated in subsection (1) is refused, the applicant may appeal to the Minister of Home Affairs against the decision taken by the Director-General".
She also proposed to change the subsection (5) as follows: "An a application contemplated in subsection (4) must be lodged with the Minister within X days after the decision was made known and accompanied by the documents referred to in subsection (2) and the reasons for the Director-General's refusal". She asked the Department to advise on the appropriate number of days.

Adv Malatji recommended insertion of a period of 14 days.

The amendment was supported by the Committee.

There were no amendments to clauses 2, 3 or the Short title.

Definitions
Ms Kgoali (ANC) proposed to insert the following definition:
"sexual characteristics" means primary or secondary sexual characteristics or gender characteristics. Primary characteristics are the form of the genitalia at birth. Secondary characteristics are those which develop throughout life and which are dependant upon the hormonal base of the individual person. Gender characteristics are 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;

Ms Botha warned the Committee to be careful when proposing new gender definitions as they might turn out to be more confusing and harmful than useful.

Mr Kellner pointed out that the above definition contained an additional three definitions, hence he proposed to define each of them separately.

The amendment was supported by the Committee.

Mr Kgware proposed to insert the following new definition:
" a person who is intersexed " is a person whose congenital sexual differentiation is atypical to whatever degree.

The amendment was supported by the Committee.

Ms Themba proposed to insert the following new definition: "gender reassignment" means a process which is undertaken for the purpose of reassigning a person's sex by changing physiological or other sexual characteristics, and includes any part of such a process".

The amendment was supported by the Committee.

The last definition suggested was that of a medical practitioner. "A medical practitioner" means a person providing health services in terms of any law including in terms of the:
(a) Allied Health Professions Act, 1982 (Act No.63 of 1982);
(b) Health Professions Act, 1974 (Act No.56 of 1974);
(c) Nursing Act, 1978 (Act No.50 of 1978);
(d) Pharmacy Act, 1974 (Act No.53 of 1974);
(e) Dental Technicians Act, 1979 (Act No.19 of 1979); and
(1) Mental Health Care Act 2002 (Act No.17 of 2002);

The amendment was supported by the Committee.

Mr Kellner proposed the insertion all of the above definitions at the beginning of the Bill.

The Chairperson agreed.

Voting
The Chairperson asked if there were any objections to, or abstentions from, the Bill. There were none.
The Committee passed the Alteration of Sex Description and Sex Status Bill [B37B-2003] with proposed amendments.

The meeting was adjourned.