By Daniela Ellerbeck, FOR SA Legal Advisor

The Western Cape Education Department (WCED) recently published  Draft Guidelines on Gender Identity and Sexual Orientation in Public Schools (“the draft Guidelines”) for public comment. The public had until 19 June 2020 to submit their views.

It is important, at the outset, to note that the draft Guidelines are still to be finalised, and even once officially adopted, will not be Departmental policy. This means that the final version of the Guidelines will not be legally binding on public schools in the Western Cape. Rather the final Guidelines would be a recommendation to schools to help them formulate their own policies in this regard. Schools are consequently free to use their discretion in deciding if they want to formulate a policy on these issues in the first place, and if so, what that policy should look like. Importantly, other provinces are likely to follow the Western Cape’s lead.

What are the concerns?

It appears that the Department wrote the draft Guidelines in a good faith effort to prevent and combat unfair discrimination, harassment and bullying in schools. However, the major concern with the draft Guidelines is that the Department itself clearly adopts a specific ideological position.

This can be plainly seen throughout the draft Guidelines, but some obvious examples include: the express purpose of the Guidelines to “promote gender identity and gender expression”, its reference to “the normal spectrum … gender identities” (as if a gender spectrum is a matter of fact), and  its mention of “gender identity rights”.

Here it is imperative to pause and state that “gender identity rights” are fictional rights which are not found in the Bill of Rights. There is no such thing in South African law as “gender identity rights” – only the right not to be unfairly discriminated against based on one’s gender, which is completely different to a right to “gender identity”. The inclusion of “gender” in the South African Constitution was historically intended to protect females from being subjected to systemic harmful patriarchal practices.

By adopting this ideological position, the Department is essentially recommending to public schools in the Western Cape that they should adopt the same position.

Significantly, the 2017 case of Organisasie vir Godsdienste-Onderrig en Demokrasie  v Laerskool Randhart & Others (the “OGOD case”) established that public schools should be ideologically neutral places. We can say this, because although the case specifically concerned “religion”, a religion is a belief system and thus an ideology. The same would therefore apply to a school adopting any specific ideology to the exclusion of others. A public school which thus adopts the transgender ideology (i.e. belief system) to the exclusion of others, would be acting illegally according to this Court judgment.

Being honest about ideologies

Importantly, transgenderism as an ideology is disputed amongst top experts in psychiatry. The position that gender is a social construct and/or that it is “fluid” (meaning that a person can choose to identify as the gender (or no gender) of their choice) is a belief system – i.e. an ideology. Essentially, its premise is that an individual’s perception of their gender supersedes the biological and genetic binary certainty of their sex.

Studies of identical twins (i.e. persons sharing 100% the same genetic make-up) have found that when one of the twins identifies as transgender, the other twin only will only identify as transgender 20% of the time. This disproves the idea that transgenderism results primarily from biological reasons. This result makes sense, because whether one feels male or female (or any other gender on the “gender spectrum”) has everything to do with self-perception, and as pointed about by Dr Michelle Cretella, “[a]n identity is not biological, it is psychological.”

In addition, the treatment of minors with puberty blockers and cross-hormone treatment has serious, lifelong repercussions: including complete and irreversible sterilisation, putting the child at risk of heart disease, strokes, diabetes, cancers, and even the very emotional problems that the treatment is meant to be treating. Recently, even the National Health Service (NHS) in the UK recognised such side effects on its website.

Critically, it is important to note that, without the above (what can only be described as dangerous) treatment, between 80% to 95% of children who identify as being a gender different to their biological sex, if allowed to go through the natural process of puberty, outgrow this condition.

The conclusion is that identity (and thus one’s perception of one’s gender) is psychological, not physical, and should be treated as such.  Further, the treatment of vulnerable children with puberty blockers and cross-hormone treatment, is not only unnecessary in up to 95% of cases, but leads to irreparable, permanent physical harm and side-effects.

The cost to rights

The fact that the WCED is promoting a proven harmful ideology, inadvertently affects the fundamental rights of parents, teachers and other learners – including, but not limited to, their fundamental rights to dignity, privacy, security of person, freedom of expression and freedom of belief and opinion.

Although the draft Guidelines attempt to cater for the “sensitivity of other learners”, this is insufficient protection of the fundamental rights which the Department is constitutionally obligated to respect, protect and promote. The draft Guidelines altogether fail to even mention parents’ and teachers’ rights.

Perhaps the most pertinent infringement on rights, is the infringement on fellow learners’ constitutional rights to privacy, and freedom and security of their person. Both these fundamental rights are directly affected and infringed by the draft Guidelines, because the Guidelines recommend that bathrooms and sleeping arrangements (in school hostels and on school excursions, or trips) be made open to learners of the opposite sex who identify as the other gender.

The recommendation is essentially that schools infringe the privacy and safety of fellow learners (who, in the course of changing for their various sporting activities or on school trips, may be seen naked by other learners in the shared bathrooms and/or bedrooms), without providing any proper protection for their rights (apart from saying that their “sensitivities” must be taken into account). In this regard, we point out that internationally, there already are various reported incidents of male paedophiles who – under the guise of being “trans-women” – have made their way into girls’ locker rooms and hostels.

In a society that is already crippled by violence against women, this conflation of sex and gender, which exposes female learners (in particular) not only to unwanted privacy violations, but to potential safety risks, is a wholly inappropriate policy recommendation or “guideline” to schools.

What next?

The Department now has to consider all the submissions received and decide whether or not to incorporate any thereof in its draft Guidelines. (For FOR SA’s submission see here.)

FOR SA will closely follow up and will notify the public of any developments in this regard.

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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