Transgender – He, She and Everything in between

by Daniela Ellerbeck
7 August 2017

By Daniela Ellerbeck, FOR SA Legal Advisor

Mark my words, this law will not be used as some sort of ‘shield’ to defend vulnerable transsexuals, but rather as a weapon with which to bludgeon people of faith and free-thinking Canadians who refuse to deny truth.” – Jack Fonseca, Canadian senior political strategist.

Did you know that Facebook allows you to choose from over 71 genders?  A choice you can change depending on how you feel at any given moment.  We no longer live in a society where gender refers to one’s biological sex, but rather to the gender each individual identifies with, i.e. chooses for themselves.

International Trends:

The State of Oregon in the USA now offers more than two genders on its identity documents, with California soon to follow suit (

India legally recognizes that every human has the right to choose their gender, Nepal allowed a third gender option in its census, while Pakistan, Bangladesh, Australia, New Zealand and Germany also grant a degree of legal status to non-binary or “third gender” people (

No other country has taken it as far as Canada though, where the Senate recently passed a Bill guaranteeing both “gender identity” and “gender expression” as human rights.  The Bill goes so far as to criminalise those who use the “wrong” pronoun when addressing someone – they could be convicted of a hate crime and fined, jailed and even subjected to “anti-bias training” (

South Africa is not exempt:

South Africa, a leader in “legislative exploration” (being the first country in the world to enshrine the right not to be unfairly discriminated against on the basis of one’s sexual orientation as a fundamental human right, and the only African country to date to have legalised same-sex marriage), seems set on following Canada’s example.

The SA government recently published a draft Public Service Pledge, which includes a commitment to LGBT (including gender identity) education in schools, from kindergarten to matric; and identity documents that reflect the individual’s chosen (rather than biological) gender identity (

Most recently, the University of Cape Town (UCT) issued for comment an “Inclusivity Policy for Sexual Orientation”, which contemplates and will result in a complete change of institutional culture. In terms of the Policy, gender is determined exclusively by ‘self-identification’: thus if a male says he is a woman, he is a woman; and if a day later, he says he is a “two-spirit person”, that is what he is. Similar to the Canadian Bill, this Policy goes so far as to force on lecturers, students, staff, etc. the use of gender-neutral pronouns, revision of course content (with a view to educating students that “heterosexual relationships are not the norm and queer relationships and families are equally valid”) as well as compulsory “sensitisation training” on transgender issues. Those who don’t comply, will face disciplinary measures.

It is clear that the Policy amounts to “politically correct” censorship of the curriculum, and the language and views expressed on campus by anyone and everyone – including religious students and societies, whose Biblical view that God created us male and female will be deemed unacceptable.

Freedom of Religion South Africa (FOR SA) assisted concerned students and societies to make submissions to UCT (  These submissions pointed out that in its current form, the draft Policy is unconstitutional because it unjustifiably limits two fundamental human rights, namely freedom of religion and freedom of expression (sections 15 and 16 of the Constitution respectively).  UCT’s answer was that individuals were welcome to exercise their right to express their views “off campus”, but not on it.  FOR SA has since appealed to UCT to reconsider their position so as to respect, protect and fulfil these fundamental human rights.

What does SA law say:

The law is very clear that no one may unfairly discriminate against another person on grounds of, amongst others, their sexual orientation or gender (section 9 of the Constitution). No human right is absolute however and this right must be balanced against other human rights, including the right to freedom of religion (section 15 of the Constitution) and the right to freedom of expression (section 16 of the Constitution).

In this regard, we mention that freedom of religion (section 15 of the Constitution) and freedom of expression (section 16 of the Constitution) are intimately linked, because the right to Freedom of Religion and Belief includes the right to express what it is one believes. (Constitutional Court in S v Lawrence, 1997).

The right to Freedom of Expression (section 16 of the Constitution) allows you to say anything that does not amount to propaganda for war, incitement of imminent violence or “hate speech” (which is constitutionally defined as “the advocacy of hatred … that constitutes an incitement to cause harm”).

The Constitution therefore grants everyone the right to state beliefs, thoughts and opinions that others may disagree with, which may even seem critical of others’ views, and which may even produce strong reactions from those who feel criticised by such expression. However, simply because something offends or hurts someone, does not mean that it amounts to hate speech and that it should be prohibited.

It should be clear that the UCT Policy threatens both religious freedom and freedom of speech. The Policy is but one example of the blatant intolerance of the LGBT activist community, who will not permit any beliefs or views that do not agree with their own.

The same intolerance has led to the villianisation and persecution of those who dare to express views contrary to their own, as in the case of Zizipho Pae (former Vice-President of the UCT SRC) and Gretha Wiid (well-known Christian author and evangelist), both who were lambasted simply for publically verbalising their Christian views.

It is crucially important to keep our universities and public places (including our workplaces, schools, government institutions etc.) open for the expression of ideas, including religious ideas.  Universities especially should be places where free and robust dialogue should be allowed to take place.  It is important that even views which are disagreeable are allowed, as freedom of expression should not be limited by the offensiveness of a statement, but only by “hate speech” (as defined in s 16(2) of the Constitution).

A Christian Response:

As believers, we have a Constitutional right to choose not only what we believe, but to express such beliefs in public. It is this right that is under threat, but it is important to remember that we are to love and respect those who threaten it – and to pray for them (Matthew 5:44).

As Christians, we understand that every person has incredible dignity and worth, because they are made in the image of God (Genesis 1:27), and are deserving of honour and respect. There are no exceptions to this truth:  all humans possess God-given dignity, and all human possess it equally.  We are Biblically commanded to love and respect each and every person – irrespective of whether we agree with their choices – and to stand up for them when we see them ill-treated.

This does not negate our responsibility to defend the rights to religious freedom and freedom of expression.  It amplifies it.  The Church is mandated to speak the truth in love and it is this very mandate that is under threat.  If Christians do not insist that our rights are respected and protected, no one else will.  We will be left lamenting their loss, but they will be but a memory and afterthought in our nation, impossible to regain.  Now is the time for us as believers to be counted worthy of the great calling God has given us: to stand up, show up and speak up!  United, and with God, we can make a difference!

Daniela is a duly qualified Attorney of the High Court of South Africa. She obtained a BCom LLB degree from Rhodes University. Daniela first worked for Médecins sans Frontières before completing her articles of clerkship at G van Zyl Attorneys, where she stayed on after being admitted as an attorney and practised, specialising in litigation. Daniela has loved Jesus since she was young and is a member of a local church in Cape Town where she is actively involved.

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