LAST year the South African Human Rights Commission (SAHRC) instituted proceedings in the Seshego Equality Court (Limpopo) on behalf of a transgender secondary school pupil.
The case arose from allegations of humiliation and harassment based on the gender identity of the pupil that created a hostile and intimidating environment. The proceedings were instituted to procure relief for alleged unfair discrimination, harassment and hurtful speech and the court found in favour of the commission.
In a landmark ruling in March, the Seshego Equality Court ordered the Limpopo department of education to pay R60000 in personal compensation to Nare Mphela. However, the court declined to rule that the national Department of Education should implement policies that would prevent similar incidents from happening in the future, which means that there will continue to be instances where children are denied the same rights as their peers because they happen to express some form of gender incongruence.
The effect of this lack of national policy to protect transgender children suggests that they are second class citizens in SA. The South African Constitution is hailed as one of the most progressive in the world and sets the regional precedent on the recognition of the rights of people who are discriminated against because of their real or perceived sexual orientation, gender identity and gender expression.
Section 9 of the Constitution, known as the equality clause, entrenches the right to equality and non-discrimination on the basis of sexual orientation and gender (among other grounds). Yet despite these noble protections the lived reality of many transgender individuals is one of second class citizenship.
The notion of citizenship can be broken down into the idea of formal citizenship (which entails belonging to a particular nation state) and that of substantive citizenship. Substantive citizenship as articulated by TH Marshall entails three core components, civil citizenship, political citizenship and social citizenship.
Civil citizenship is composed of individual centred rights, political citizenship implicates the participatory elements of substantive citizenship and finally social citizenship has a socio-economic dimension.
Binary understandings of gender create an environment where transgender individuals cannot access substantive citizenship and thus undermines their right to equality and non-discrimination as articulated in the Constitution.
Binary conceptions of gender
The South African legal framework is firmly rooted in binary conceptions of gender
These binary conceptions of gender formally acknowledge the sex categories of male and female and these categories are taken to correlate to the socially constructed categories of man and woman respectively. However, gender identity and expression are far more complex than that in the sense that there are individuals who occupy liminal spaces and those who may be assigned a particular sex at birth but identify as a non-correlated gender. To this effect law and policy reproduce systems of gender essentialism which assume that gender is a biological and natural manifestation of whatever sex a person is assigned at birth.
This is not only untrue but it is deeply damaging because it produces and reproduces gender hierarchies which legitimate and privilege cisnormative gender identities and expressions over other non-normative expressions. The result being the medicalisation of transgender and gender non-conforming individuals.
Medicalising laws
Scholars and civil society organisations have long criticised The Alteration of Sex Description and Sex Status Act as medicalising and pathologising trans and non-conforming gender identities and expressions. Section 2(1) of the act requires that an individual who is applying for an alteration of their sex description have undergone a medical, surgical, natural or other intervention prior to an application for their sex descriptor to be changed Section 2(2) of the act further requires that an individual provide two supporting letters from medical practitioners prior to the change of their sex descriptor.
The effect of this provision is that consultation with medical practitioners is required prior to a person being recognised as the gender of their choice. This location of trans identities as pathologies is archaic and entrenches the intersectional oppressions faced by some trans individuals because of their class, education and locality. The end result being that those who are less likely to have access to healthcare practitioners because there are not in urban areas, are economically insecure or simply do not have the information are also less likely to have their true gender identity reflected in their identity documents. This fact can lead to an incongruence between the manner in which one expresses their gender identity and the way that they are perceived in public institutions. The result being unfair discrimination and denial of substantive citizenship as a whole.
Transgender children
While it can be argued that adults have a certain degree of agency thus bearing the responsibility of seeking out gender affirming healthcare, the same argument cannot be extended to children as there is a duty on the state to protect the best interests of the child in all of its dealings.
The system of gender essentialism has far reaching consequences for children in the sense that it affects the way in which they can explore and engage with their gender identity and expression in the public spaces that they occupy such as schools. In the school environment sporting and social codes serve to reinforce cisnormative conceptions of acceptable attire, activities and modes of self-expression.
Not only is this damaging to transgender
children but it has wide implications for children who express some form of gender incongruence as the response is to either immediately seek to medicalise them or to force them to present in ways in which they do not find comfortable. This can lead to harassment, taunting and bullying which has long term psychological effects on children.
Recommendations
One way of mitigating these effects would be for SA to adopt the Argentinian model which only requires self-identification for a sex description change. Therefore people can have their sex description changed based on a set of self-identification criteria without the need for proof of medical intervention. Further, it has been suggested that a third gender neutral category be adopted to allow for fluid gender expressions to be accommodated in identification documents. The framework for the recognition of the rights of transgender individuals exists, however, there needs to be a shift in essentialist thinking. The law and policy need to serve the needs of people and allow for fluidity and hybridity to be accommodated without locating trans identities squarely within the realm of medical science.
Tatend Mauranda is a research associate at the SAHRC