Mail & Guardian

Victory for married transgende­r people

- 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
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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