Submission

Alteration of Sex Description and Sex Status Bill

Introduction

SAHRC welcomes the Bill SAHRC has dealt with a small number

of complaints Supports the Bill based on principles of

human dignity, achievement of equality and the advancement of human rights and freedoms

Mandate of the SAHRC

The SAHRC is mandated by section 184 of the Constitution to:

(a)    Promote respect for human rights and a culture of human rights;

(b)    Promote the protection, development and attainment of human rights; and

(c)     Monitor and assess the observance of human rights in the Republic.

Background to the Legislation

Births and Deaths Registration Act, 1963

Births and Deaths Registration Act 1992 Case of WvW, followed the “Ormrod

Test” from the UK case Corbett v Corbett

Identification Act, 1997 Identity documents record your sex

Trends elsewhere in the World

Liberty study– 23 out of 37 European Union states permit

birth certificate change– 10 states were unclear, law was in flux– Canada, Australia, New Zealand and 50 of

the 52 states in the USA allow changes to birth certificates

– Namibia, India, Pakistan and Egypt

Further Observations

Little controversy of note Trend of recognition has continued Denial based on fundamental moral

objections

European Court of Human Rights

I v. The United Kingdom Christine Goodwin v. The United

Kingdom July 2002 judgment handed down Failure to grant full legal recognition and

allow amendment of birth certificate, violation of right to privacy and right to marry and to found a family

Ormrod test rejected

“In the 21st century the right of transsexuals to personal development and to physical and moral security in the full sense enjoyed by others in society cannot be regarded as a matter of controversy requiring the lapse of time to cast clearer light on the issues involved. In short, the unsatisfactory situation in which post operative transsexuals live in an intermediate zone as not quite one gender or the other is no longer sustainable.”

Impact on Lives – Real Experiences Individuals not willing to come forward Wish to retain dignity and privacy

Banks

“The banks are the worst; they absolutely refuse to change your sex details. I will not have a credit card because can you imagine that every time you used your card you have to explain your personal life in public.”

ID document

“I have considered obtaining a false ID, but why should I be forced to become a criminal?”

Employment

“Applying for a job is difficult because at some stage you have to show your employer your ID document and then questions are asked.”

Medical Records

“My right to confidentiality of my medical records and history is exposed in public each time have to explain my situation.”

Social stigma

“I left my home town because every time I went out people would look at me and speak about me. I still feel uncomfortable when I return. This is why I wish to remain anonymous. I have started a new life in this city and have established new relationships and friendship. I do not want this to be destroyed.”

Banks

“When I applied to open a bank account at a leading bank, I was questioned in open public in the middle of the bank as to whether I intended committing fraud as there was something wrong with my ID Document. I was made to feel like a criminal.”

Freedom

“I feel that I do not have freedom, freedom to be who I am. My life would have been very different had I not have had to go through all of this (sex change operation).”

Sport

“Can you imagine being a boy of 16 years of age who is growing breasts? Physical education was a nightmare!”

Religion

“I would like to attend church and become part of its activities, but will I be accepted when my sex identity is found out?”

Final Stage

“This piece of legislation is so important to me – it is the final stage that is needed to make my sex change complete.”

Home Affairs Department

“People treat you as a curiosity. I felt certain once when a new person was employed at the Department of Home Affairs in the section that deals with my applications, that I was called in, merely so that the official could look at me. Others have been very sensitive and helpful.”

Arrest vs. victim of crime

“Heaven forbid that I should ever be arrested for anything – what would happen to me when they discover my ID document says I am a man when I am a woman. Would they put me in the cells with the men?”

“What are my rights? Do I have any? What would happen if I were raped or if my partner were to physically abuse me? What would happen when I went to the police station to report such a crime? I sometimes feel that I do not have any rights.”

Arrest / Prison

       “Which cell would I be placed in if I were arrested?”

Marriage

“I tried to open and account at a leading jewellery store to buy my girlfriend an engagement ring. They telephoned me up and refused my credit application as they said that my ID document was fraudulent.”

Banks

       “I do not have bank accounts or credit as I am not prepared to suffer the indignity of explaining my personal life to others.”

Post

“I do not want post arriving at my home addressed to a person of the opposite sex.”

Marriage

“I cannot get married, people keep asking us why we are not married yet.”

Id document

       “You need to produce am ID document for so many things. Often you have to fill in forms that request your ID number. People can tell form your ID number what your sex is. Say for example, I go to a new dentist, what interest is it to him what sex I am?”

Medical Aid

“My boyfriend and I are too scared to have me placed on his medical aid, (even though his work would allow this) as he holds a relatively senior position and we could not bare to face the indignity of his work colleagues finding out and responding negatively.”

Branding

       “I want to conform and be normal, Home Affairs are branding us and attaching a number to us, it is similar to the past when our identity documents reflected our race groups, why are we being branded?”

Rights Violated

Privacy Dignity Equality, sex , gender, sexual

orientation

Other rights

Social security Family life, marriage Labour laws etc. ….

Submissions

1.                  Section 1(3) “… unless such changes have been made public.”

Remove 2.                  Section 1(2) (b). “Prepared by

the medical practitioners who carried out the procedures and applied by the treatment.”

“…or a medical practitioner in the field with experience in the carrying out of such procedures.”

Conclusion

Based on the rights enshrined in the Constitution, particularly the rights to privacy, dignity and non-discrimination the SAHRC calls upon Parliament to pass this legislation speedily in order that the continuing rights violations that are visited upon individuals who have undergone sexual reassignment surgery will be ended.