By Adv Nadene Badenhorst, Legal Counsel of FOR SA

The Cape Town High Court recently handed down a judgment that has been heralded as a major victory for transgender rights in South Africa. The judgment, handed down by Judge Binns-Ward, should make it easier for transgender persons who, before their transition married someone of the opposite sex but who now (because of their transition) are in fact married to someone of the same sex, to have their sex/gender change officially recorded by the Department of Home Affairs (DHA) and to obtain a new identity document, passport, driver’s licence, etc. (The judgment can be read here – http://www.saflii.org/za/cases/ZAWCHC/2017/90.html)

While one can understand the reasoning that, once a person has had a sex change, a government department should not make it difficult for them to have their official records and documents changed accordingly, the judgment nonetheless tampers with the definition of traditional marriage and for that reason is very concerning.  This is especially so because the judgment is also sharply critical of what it described as “the persisting influence of the religious and social prejudice against the recognition of same-sex unions”, which the Court believes to have coloured the DHA’s approach to applications by such persons.

Facts of the case, and the Court’s reasoning:

In terms of the Alteration of Sex Description and Sex Status Act of 2003, persons who have had a sex change can apply to the DHA for a change of their sex/gender description on their birth register. This, in turn, will result in an altered birth certificate as well as a change on the population register, resulting in a new ID document with a new ID number having an altered gender-related figure code.

The present case came to court because of the difficulties transgender persons are experiencing in having their sex/gender change registered by the DHA because they concluded a heterosexual marriage under the Marriage Act before they became transgender, and who are still in / wish to remain in that marriage except that the two spouses now have the same gender.

It appears that when application was made for such change on the birth and population registers, the Department held the position that, for as long as the spouses’ marriages remain registered as having been solemnised under the Marriage Act (which only recognises heterosexual marriages), it cannot make the change.

As a result, the transgender applicants argues that persons in their position who apply to the Department to have their official record changed, either have to first obtain a divorce, or in some instances they have subsequently found that their marriage record has been deleted or amended by the Department as if it had been concluded under the Civil Union Act, which allows for same-sex marriages.

On consideration of the provisions of the Marriage Act, the Court found that “there is … no parallel system of civil marriage, as contended for by the [Department]; there is only a parallel system for the solemnisation (i.e. the marriage formula to be uttered by the marriage officer) of marriages”.  In other words, while the marriage formula uttered by a marriage officer may be different under the Marriage Act (which refers to husband and wife) and the Civil Union Act (which has a gender-neutral marriage formula), there are no pertinent differences between the prescribed formalities in respect of the solemnization of marriages, or the legal consequences of the marriages. Moreover, the Marriage Act does not contain anything prohibiting a party to a marriage duly solemnised in terms of that formula, from undergoing a sex-change or obtaining an altered birth certificate. In the circumstances, the Court found that no such prohibition should have been imputed by the Department.

Importantly, the Court specifically stated that “whether or not the dichotomous regime in respect of the solemnisation of marriages is constitutionally compatible, is not a question that has to be decided in this case”.

Ultimately, the Court found that the manner in which the DHA dealt with transgender spouses’ applications was inconsistent with the Constitution and unlawful, in that it infringed their rights to administrative justice, equality and human dignity and was also inconsistent with the State’s obligations in terms of s 7(2) of Constitution.  The Court ordered the Department to determine applications by transgender spouses for the alteration of their sex/gender on their official records and documents – irrespective of their marital status and, in particular, irrespective of whether that person’s marriage or civil partnership was solemnised under the Marriage Act or the Civil Union Act.

Implications of the judgment for traditional marriage:

The Court is correct that, on a literal interpretation of the relevant provisions in the Marriage Act and the Civil Union Act respectively, it is really only the marriage formula which differs.  While the formula in the Marriage Act contemplates a marriage between two persons of the opposite sex, the formula in the Civil Union Act is gender-neutral. Ultimately, the Court correctly found that the legal consequences of marriage concluded under the Marriage Act or under the Civil Union Act are exactly the same.

However, this difference is neither a small nor insignificant matter. It is this very difference that distinguishes traditional marriage (between one man and one woman), from any other kind of marriage (whether a same-sex marriage, or a marriage between three persons of whatever sex – “thruples” – as is already being pushed for in the USA and elsewhere). Why? Because there IS an obvious and fundamental difference between traditional marriage and any other kind of marriage.  This is not the same as saying that same-sex marriages are somehow inferior to heterosexual marriages, which difference is directly related to the biological reality (whether male, or female) of the persons who commit themselves to such marriage. It is because our society recognises this obvious and fundamental difference.  This is why we have two separate and distinct laws regulating marriage in South Africa also (namely the Marriage Act, and the Civil Union Act).

FOR SA’s concern with this judgment is that it erodes this important and necessary distinction, and potentially opens the door for a constitutional challenge to “the dichotomous regime for the solemnisation of marriages in South Africa”. This regime was adopted by Parliament in 2006 after the Constitutional Court effectively legalised same-sex marriage in 2005 (in the case of Minister of Home Affairs v Fourie) and directed Parliament to amend the Marriage Act accordingly, but suggesting in its judgment that it may be permissible for Parliament to adopt a separate law to accommodate the recognition of same-sex marriages (in the same way it had adopted a separate law to recognise customary marriages).

Having convened public meetings on the issue, and having heard in particular also the voice of the church in South Africa (many of whom united under the banner of “Marriage Alliance of South Africa” for this very purpose), Parliament, in recognition of the fact that the majority of South Africans held to a traditional understanding of “marriage”, decided to reserve the Marriage Act for traditional marriages and adopt a new Civil Union Act for same-sex marriages.

Since the adoption by Parliament of this “dichotomous regime”, LGBT activists have expressed their upset with this “separate but equal” arrangement which they consider to be akin to the old Apartheid laws in the context of race.  In particular, LGBT activists have taken issue with s 6 of the Civil Union Act, which allows marriage officers who work for the State to refuse to solemnise same-sex marriages on grounds of conscience, religion and belief. (LGBT activists contend that you give up your constitutional right to freedom of religion the moment you become an employee of the State.) More than ten years later, this section is now under attack as a result of a Private Members Bill proposed in Parliament by COPE MP Deidre Carter, which seeks to remove s 6 from the Bill.

LGBT activists also take issue with the fact that, in terms of 5 of the Civil Union Act, religious denominations or practitioners who do wish to solemnise same-sex marriages, must specifically apply and be designated by the Minister of Home Affairs in order to do so. In their opinion, if there is no legal difference between traditional marriage and same-sex marriage, why should pastors have the right to refuse to marry a same-sex couple? As a result, we should not be surprised to see an attack on this provision as the next stage in this contentious area where liberal ideology clashes with freedom of religion rights.

Having obtained a BA LLB degree from the University of Stellenbosch, Nadene was awarded a scholarship to study a LL M degree in International Human Rights Law at the University of Essex, United Kingdom which she obtained cum laude.

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