Alteration Of Gender Of A Married Person

Imagine standing in a banking queue for hours just to hear that they can’t help you.  Or trying to buy a plane ticket and being rejected.  Imagine having to live your life fearing the next time someone asks you for proof of your Identity or for your Driver licence.

This is how many South-Africans go about their daily lives after undergoing a gender alteration surgery, specifically if they are married in terms of the Marriage Act.  The reason being that they are not allowed to change their gender on either the National Population Register or on their Birth Certificates at the Department of Home Affairs, because of their marriage status.

In a recent highly controversial and contradicting Judgment the Western Cape High Court found that the Department of Home Affairs, should within 30 days after Judgment, furnish three persons with new Birth Certificates changing their gender after they underwent the surgery.

This is in light thereof that South Africans can legally change their sexual identity through the Alteration of Sex Description and Sex Status Act.  This Act allows you to apply to the Director-General of the Department of Home Affairs to change your “sex descriptor” (as it’s called in the act) on the birth register. Specifically, the Act allows for your sex to be changed if you have undergone surgical sex reassignment, have experienced a natural evolution of your sexual characteristics or you are intersex. Any rights and obligations you held before the registration, are still valid after the change. You are also entitled to a new birth certificate reflecting your amended sex.

As all three of these persons were married at the time of the surgery under the Marriage Act, this resulted in the alteration of the gender of a married person, which rendered the marriage outside the scope of the Marriage Act, and into the scope of the Civil Union Act.

On this point the Court found that although this is true, both the Marriage Act and the Civil Union Act treated marriage as “a union of two persons, to the exclusion, while it lasts, of all others.”

There was no parallel system of Civil marriage but only a parallel system for the solemnisation of marriages, one in terms of the Marriage Act, and the other in terms of the Civil Union Act, and that the Department of Home Affairs should state that the persons are married, but not according to which Act, resulting in further uncertainties.

This may have resulted in a temporary solution for the persons in the specific case and their day – to – day troubles but have created a whole new unregulated field of law, which will most likely lead to very interesting legal discoveries in the near future.

Roua Pienaar

Candidate Attorney

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