Question NW3265 to the Minister of Home Affairs
10 October 2022 - NW3265
De Freitas, Mr MS to ask the Minister of Home Affairs
What (a) plans and strategies are in place to protect the rights of tourists and travelers from the lesbian, gay, bisexual, transgender, queer and intersex community, (b)(i) mechanisms, (ii) processes and (iii) procedures have been put in place in this regard, (c) are the timelines, time frames, deadlines and milestones in this regard and (d) is used as a yardstick to measure it in each instance?
Reply:
(a – d)
Travelling of all persons through our international borders, irrespective of their sex, gender and sexual orientation, is regulated through the Immigration Act No 13 of 2002 and South African Passports and Travel Documents Act No 4 of 1994. Section 9(3)(a) of the Immigration Act states that, “No person shall enter or depart from the Republic unless he or she is in possession of a valid passport, and in the case of a minor, has his or her own valid passport. Subject to the provisions of this Act, every South African citizen shall be entitled to a South African passport”. Section 3 of the South African Passports and Travel Documents Act states that, “Subject to the provisions of this Act, every South African citizen shall be entitled to a South African passport”.
In administering these legislation, the Department observes the provisions of the Constitution of the Republic, Act 108 of 1996. Section 9(3) of the Constitution provides that the State may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth. Therefore, the rights of tourists and travelers from the lesbian, gay, bisexual, transgender, intersex and queer (LGBTIQ) community are protected through the Bill of Rights.
As far as transgender travellers are concerned, the Department does not refuse entry to visitors who carry non-binary passports; that is, passports that do not indicate a person’s gender. As for SA citizens, the current legislation only allows for the issuing of binary passports; that is, passports that indicates a person’s gender (male or female). The Official Identity Management Policy, which was approved by Cabinet in March 2022, recommends the introduction of non-binary identification documents. Subsequent to Cabinet approval of the Official Identity Management Policy, the Department began with the process of drafting the new Identification Act which will also impact on the current SA Passports and Travel Documents Act. The plan is to submit the new Identification Act to Cabinet by March 2023 to request approval for public consultations. It is anticipated that the new legislation will be tabled in Parliament during the 2023/24 financial year.
END