Vic­tory for mar­ried trans­gen­der peo­ple

Mail & Guardian - - News - Carl Col­li­son

The judg­ment should im­prove the home af­fairs department’s at­ti­tude to­wards trans­gen­der mar­riages

Are­cent judg­ment en­sures that trans­gen­der peo­ple who tran­si­tioned af­ter they got mar­ried don’t have to get di­vorced to have their gen­der re­flected ac­cu­rately in their iden­tity doc­u­ments (ID).

The mat­ter was brought be­fore the Western Cape High Court by three couples who were mar­ried un­der the Mar­riage Act be­fore one of the spouses be­gan their tran­si­tion.

“It was emo­tion­ally very, very dif­fi­cult be­ing told to get a di­vorce even though my wife and I didn’t want one,” says Adelle Hertz, one of the ap­pli­cants in the case and who un­der­went gen­der-af­firm­ing surgery.

Hertz, who chose not to use her real name, mar­ried her part­ner in 1988 un­der the Mar­riage Act. She dis­closed her true gen­der to her wife, who she says “is very sup­port­ive”.

De­spite hav­ing her fore­names suc­cess­fully changed and ob­tain­ing an ID that re­flects her fe­male ap­pear­ance, her iden­tity doc­u­ment con­tin­ued to list her gen­der as male.

Her 2016 ap­pli­ca­tion to have this cor­rected was de­clined by a department of­fi­cial, who told her that the department’s com­put­ers “sim­ply [would] not al­low an amend­ment to [her] gen­der as [she] was mar­ried in terms of the Mar­riage Act’.”

The cou­ple were then ad­vised to ob­tain a di­vorce and re­marry un­der the Civil Union Act. But a di­vorce would only be granted if it could be proven that there had been an ir­re­triev­able break­down of their re­la­tion­ship.

“But that was not the case,” says Hertz. “Which means that, in or­der for us to get a di­vorce, we would have to lie to the court. We would have had to com­mit per­jury.”

Trans­gen­der peo­ple who have gen­der mark­ers on their IDs that con­tra­dict their phys­i­cal ap­pear­ance are of­ten faced with dif­fi­cul­ties in their day-to-day lives when asked to pro­duce such doc­u­men­ta­tion.

De­liv­er­ing the judg­ment, the court noted that “the many and var­i­ous dif­fi­cul­ties that could present for a per­son whose gen­der char­ac­ter­is­tics dif­fer from those recorded on his or her iden­tity card are not hard to imag­ine” .

The Al­ter­ation of Sex De­scrip­tion and Sex Sta­tus Act of 2003 says a trans­gen­der per­son can ap­ply to the department’s di­rec­tor gen­eral to have their gen­der marker changed and then be pro­vided with the al­tered birth cer­tifi­cate.

But there have been prob­lems with its im­ple­men­ta­tion. Ac­cord­ing to the trans and gen­der rights or­gan­i­sa­tion, Gen­der Dy­namix, the main prob­lems were that author­i­ties were ig­no­rant of the ex­is­tence and con­tent of the Act and that there were no pre­scribed forms and pro­ce­dures for the ad­min­is­tra­tion of the Act. The re­quire­ment by the department that ap­pli­cants who were mar­ried un­der the Mar­riage Act first have to ob­tain a di­vorce was another ob­sta­cle.

The judg­ment said “the ab­sence of a uni­form ap­proach by the department to these mat­ters is strik­ing”.

It said one of the ap­pli­cants “found her­self in em­bar­rass­ing sit­u­a­tions in which she was called upon to ex­plain why her ap­pear­ance did not cor­re­spond with that de­picted on her of­fi­cial iden­tity cards. Some peo­ple proved sym­pa­thetic to her predica­ment; from oth­ers it elicited re­ac­tions of sus­pi­cion or hos­til­ity. This caused her in­creas­ingly to with­draw from deal­ing with the out­side world and leave the man­age­ment of her af­fairs to her wife.”

Hertz says: “You have to come out to strangers, which can be trau­matic. It is hu­mil­i­at­ing. But there is also the fear fac­tor, you know, that you’d be em­bar­rassed … or worse.”

Mandy Mu­darikwa is with the Le­gal Re­sources Cen­tre, the ap­pli­cants’ at­tor­neys. She says the Al­ter­ation Act is “cru­cial in re­al­is­ing the right to iden­tity and equal­ity of trans­gen­der per­sons”. The judg­ment will en­sure it is im­ple­mented con­sti­tu­tion­ally and in a way “that is re­spect­ful of the lived re­al­i­ties of trans­gen­der per­sons in South Africa”.

She adds: “This judg­ment has brought re­lief for these three couples who are in lov­ing mar­riages but had been forced to choose be­tween al­ter­ing their sex de­scrip­tion or end­ing their mar­riages.”

Says Hertz: “Al­though there are only three couples, we rep­re­sent many more.

“So it was a priv­i­lege for me to be an ap­pli­cant, be­cause I know that so many couples will be helped by this.”

One such cou­ple is Deena John­son and her wife, who were mar­ried in April 2003.

John­son, who chose not to use her real name and is “still in the process of com­ing out”, says: “Thank God some­one took this to court be­fore it was an is­sue for me. I am still de­cid­ing whether I want to have my gen­der marker changed. I would pre­fer us to re­move gen­der mark­ers from iden­ti­fi­ca­tion en­tirely, but we’re very far from that be­ing a le­gal re­al­ity.

“But this [judg­ment] makes it much sim­pler for me if I do choose to change my gen­der legally. I’m just happy that some­one got there first and paved the way. It re­ally makes it a great deal eas­ier.”

To­gether: If a spouse tran­si­tions, he or she no longer has to get di­vorced to have their gen­der of­fi­cially amended. Photo: Jay Directo/AFP

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