Human Rights Watch is an independent non-governmental organization dedicated to protecting and defending human rights around the world, including those related to the rights of lesbian, gay, bisexual, transgender and intersex (LGBTI) people, women’s rights, children’s rights and other marginalized groups such as prisoners, displaced persons, ethnic and racial minorities, persons living with disabilities, refugees and asylum seekers, and migrant and domestic workers. Human Rights Watch has an office in Johannesburg from where we cover our work for Southern Africa Development Community (SADC). Our work in South Africa has covered violence and discrimination against black lesbians and transgender women; working conditions for farm workers; failure to guarantee inclusive education for children with disabilities; the need to decriminalise sex work and xenophobic violence against non-nationals in South Africa.
Human Rights Watch welcomes the opportunity to make a submission to the Minister of Home Affairs on the Draft Official Identity Management Policy published in terms of section 85 (2) of the Constitution of the Republic of South Africa for public comment. The policy seeks to address how the Department of Home Affairs will regulate the manner in which personal information will be processed by establishing minimum requirements for the lawful processing of personal information contained in the Protection of Personal Information Act, 4 of 2013. Human Rights Watch agrees with the assessment by the Department of Home Affairs (DHA) that the current system is inadequate because ‘[G]ender and sexual identity minorities are excluded because the current laws and policies do not cater for changes in the gender/sex attribute of the identity system.’ The draft policy public consultation document also notes that ‘[t]hey experience discrimination when attempting to register or update their gender in the ID system.’ The Identification Act and Alteration of Sex Description and Sex Status Act 49 of 2003 are significant items of legislation that regulate how personal data is hosted in the DHA identity management system.
Changing your Gender Marker
The Southern African Litigation Centre (SALC), an organisation based in Johannesburg that works to promote and advance human rights, democratic governance, rule of law and access to justice in Southern Africa has done extensive analysis of the impact of laws and policies affecting transgender people in the SADC region. SALC summarises the current procedure for legal gender recognition as follows:
“Transgender people can apply to change their sex description in the birth register in terms of the Alteration of Sex Description and Sex Status Act 49 of 2003. Section 2(1) states: “Any person whose sexual characteristics have been altered by surgical or medical treatment or by evolvement through natural development resulting in gender reassignment, or any person who is intersexed may apply to the Director-General of the National Department of Home Affairs for the alteration of the sex description on his or her birth register.
- In terms of section 2(2)(b) an application must include medical reports by the doctors who carried out the surgical treatment or the doctors who provided the medical treatment.
- The Act does not make it compulsory that an applicant had to have undergone gender reassignment surgery. Hormonal treatment is sufficient.
- However, officials at the Department of Home Affairs sometimes apply the Act incorrectly and turn away applicants who have not had surgery. Applicants sometimes have to wait for over two years to get a response.
- If the application is granted, the Magistrate issues an order directing the Director-General to alter the sex description in the birth register of the person named in the order.
- An amended birth certificate is issued to the applicant in terms of section 27A of the Births and Deaths Registration Act 51 of 1992.”
A major finding noted by several organisations working on this issue is that officials at the Department of Home Affairs do not apply the Act consistently, that often there are serious delays in processing applications and some applicants are frequently rejected on the grounds that they have not had surgery.
Human Rights Watch has conducted extensive research and documented the negative impact of inadequate legal gender recognition for transgender, non-binary and intersex persons in official identity documents in various parts of the world. Furthermore, Human Rights Watch has extensively documented how children born with variations in their sex characteristics – sometimes called intersex variations – are often subjected to "normalizing" surgeries that are irreversible, risky, and medically unnecessary.
The Legal Resources Centre and Gender Dynamix have identified shortcomings in the implementation of the Alteration of Sex Description and Sex Status Act 49 of 2003. The organisations identified several concerns, which the new policy should address. As set out in the report, these include:
- Rejection of applications for sex alterations with the justification that the applicant did not provide proof of gender reassignment surgery.
- The waiting period for applications to be processed has been reported to have been anywhere between one year to seven years.
- The successful sex description alteration causes problems for married applicants. The Marriages Act and Recognition of Customary Marriages Act do not recognise same-sex marriage, thus married couples are required to remarry in terms of the Civil Union Act. However, the Divorce Act does not accommodate these grounds for divorce, and effectively causes applicants to lie before the court in order to end their marriage in terms of the Marriages Act and the Recognition of Customary Marriages Act only to remarry in terms of the Civil Union Act.
- It is unclear whether or not the Alteration of Sex Description and Sex Status Act 49 of 2003 applies only to South African citizens or to everyone resident in the country, including refuges and asylum seekers.
Chapter 6- Policy Framework: Inclusion (6.1)
The draft policy enumerates several grounds for non-discrimination. Human Rights Watch recommends that the policy list all the grounds listed in section 9(3) of the constitution, including citizenship.
Human Rights Watch recommends the inclusion of all migrants, including refugees, asylum seekers and undocumented, as a vulnerable group in respect of implementation of the Alteration of Sex Description and Sex Status Act 49 of 2003.
On Chapter 7 - Policy analysis and options: Principle 1: Ensuring universal coverage for individuals from birth to death, free from unfair discrimination (7.1)
Principle 1 calls for universal coverage for individuals from birth to death free from discrimination, and it expressly includes ‘gender minorities’. However, this term is not included in the glossary section. Failure to define this term may cause confusion amongst Home Affairs officials responsible for implementation of the policy.
Lack of birth registration for all - Intersex children (7.1.1) The draft policy recognises that the Identification Act and Deaths Registration Act do not cater for the birth registration of children who are born intersex and that a third gender is now being considered for persons born intersex.
In his 2013 report, the UN Special Rapporteur on Torture specifically mentioned that: “Children who are born with atypical sex characteristics are often subject to irreversible sex assignment, involuntary sterilization, involuntary genital normalizing surgery, performed without their informed consent, or that of their parents, “in an attempt to fix their sex,” leaving them with permanent, irreversible infertility and causing severe mental suffering. The Committee on the Elimination of Discrimination against Women (CEDAW Committee) has in several instances criticized governments for not protecting the rights of children born with intersex traits.
In 2020, South Africa joined 35 states in joint statement to the United Nations Human Rights Council, asserting: “We call on governments as a matter of urgency, to protect the autonomy of intersex adults and children and their rights to health, and to physical and mental integrity so that they live free from violence and harmful practices.”
Human Rights Watch supports the policy proposal “that new legislation and National Identity System (NIS) must enable the registration of births and deaths for intersex children.”
On Legal Gender Recognition: International human rights standards are increasingly understood to require the separation of administrative and medical processes when it comes to legal gender recognition for transgender people.
The International Covenant on Civil and Political Rights (ICCPR) provides for equal civil and political rights for all (article 3), the right to recognition for everyone before the law (article 16), the right to one’s privacy and family (article 17), and the right of people of marriageable age to marry and to start a family (article 23(2)).
Governments are obligated under the ICCPR to ensure equality before the law and the equal protection of the law of all persons without discrimination, including on the ground of sex (article 26). The UN Human Rights Committee, the international expert body that monitors state compliance with the ICCPR, has specifically recommended that governments guarantee the rights of transgender persons including the right to legal recognition of their gender, and that states should repeal abusive and disproportionate requirements for legal recognition of gender identity.
In South Africa the seventh digit of an individual’s unique identity number indicates whether a person is male or female. As set out in the draft policy document, for transgender and intersex persons, this is contentious when the number does not reflect their gender identity. Transgender people in South Africa, should be able to change their gender marker on their ID and other relevant documents. In the current formula this would mean altering the seventh digit. This should include asylum seekers, undocumented migrants and refugees who have come to South Africa to seek protection due to persecution in their countries of origin and who have undergone the legal procedures to change their gender.
Human Rights Watch supports the creation of a system or mechanism by the Department of Home Affairs that enables gender self-identification and reflection thereof in ID documents. Transgender and intersex groups have identified a risk of being identified by a special marker, or system that while seeking to accommodate them, may inadvertently identify them as transgender or intersex thereby leaving them vulnerable to discrimination or abuse.
The draft policy outlines two options to include transgender and intersex people. One option is randomized ID numbers which will not reveal personal data, including gender. The other option is to create a gender-neutral X marker in addition to male and female categories. Whichever option is adopted by the Department of Home Affairs, it should be done in such a way to ensure that transgender and intersex people are not singled out and identified by an X gender marker or by a limited application of randomised ID numbers only to transgender and intersex people. If the X marker option is adopted this should be available to anyone who does not choose to identify as male or female on their ID, and if the randomized ID number option is adopted this should be extended to all South Africans within a reasonable timeframe.
 Protection of Personal Information Act, 2013 available at: https://www.gov.za/sites/default/files/gcis_document/201409/3706726-11act4of2013protectionofpersonalinforcorrect.pdf.
 Draft Policy on Official Identity Management, p.16.
 Identification Act, available at: https://www.gov.za/sites/default/files/gcis_document/201409/a68-97.pdf.
 Alteration of Sex Description Act, available at: https://www.gov.za/sites/default/files/gcis_document/201409/a49-03.pdf.
 Gender Dynamix and Legal Resources Centre Briefing on Alteration of Sex Description and Sex Status Act, No. 49 of 2003 available at https://www.transgendermap.com/wp-content/uploads/sites/7/2019/05/LRC-act49-2015-web.pdf, p.21.
 Draft Policy, p.31.
 Statement by the Kingdom of the Netherlands, Follow-up and implementation of the Vienna Declaration and Programme of Action. General Debate - Item 8, October 1, 2020, https://www.permanentrepresentations.nl/permanent-representations/pr-un-geneva/documents/speeches/2020/10/1/united-nations-human-rights-council---45th-session.
 Supra n15.
 Home Affairs considers scrapping male and female ID numbers, https://www.dailymaverick.co.za/article/2021-02-18-home-affairs-considers-scrapping-male-and-female-id-numbers.