At the time when the equality clause in the South African Constitution and then, later, the Promotion of Equality and Prevention of Unfair Discrimination Act (PEPUDA) were drafted, the drafters ignored the plight of transgender persons, despite the fact that transgender individuals are one of the most marginalised and discriminated against groups in our society.

The marginalisation of transgender individuals is to some degree illustrated by the fact that very few cases dealing with transgender rights have ever reached the South African courts. (I could only find two judgments on Saflii dealing in any meaningful way with the rights of transgender individuals.)

In one of the two cases – KOS and Others v Minister of Home Affairs and Others – the high court had to deal with the absurd situations that arose when married transgendered persons applied to the Department of Home Affairs to have their sex description changed on their various ID documents.

This is provided for under the Alteration of Sex Description and Sex Status Act, which allows a transgender person to have their sex description changed from male to female and from female to male. The Act is relatively progressive, and if properly applied would make it relatively easy for a transgendered individual to get the department to officially recognise their new sex.

But alas, because so many Home Affairs officials are transphobic (many are also deeply homophobic, but that is a story for another day), transgender persons are often required to meet requirements not formally stipulated in the Act. In the KOS case, the officials from the Department of Home Affairs were stumped by the fact that the transgender individuals who requested to have their sex descriptions altered were married under the Marriage Act and not under the Civil Union Act.

In terms of South African law only heterosexuals can get married in terms of the Marriage Act. Couples in same-sex relationships have to get married under the Civil Union Act. (The legislature decided to adopt a separate Civil Union Act in order to accommodate the homophobic prejudice of people who oppose same-sex marriage.)

Departmental officials had a problem with changing the sex description of the applicants as this would mean that they would now officially be in same-sex marriages. Department officials claimed this was not legally permitted as same-sex couples are not permitted to be married in terms of the Marriage Act. According to department officials the Marriage Act must be reserved for heterosexual marriages, one assumes on the deeply offensive basis that heterosexual marriage needs to be “protected” from being tainted by same-sex couples.

The department thus refused to change the sex description of one applicant and unilaterally cancelled the (previously heterosexual) marriage of another applicant to ensure that a change in the sex description of a spouse did not lead to the recognition of same-sex marriage concluded in terms of the Marriage Act.

The high court rejected this approach by the department, ruled that the department had dealt with the applications in an unconstitutional manner, and ordered that the alteration of the sex description on a person’s birth register should be affected by the department irrespective of the person’s marital status.

But the high court did not provide any meaningful analysis of the law regarding non-discrimination against transgender persons. Which means that the case being brought against the Departments of Justice and Correctional Services by Ms Jade September could become a groundbreaking case on transgender rights.

Ms September is a prisoner at the Helderstroom Maximum Correctional Centre in Caledon. She has turned to the Equality Court to compel the departments of Justice and Correctional Services to allow her to dress as a woman, even though she is in a male prison. She is not asking to be transferred to the women’s prison because she has never had access to gender affirming healthcare, and, according to her lawyer, she is therefore “likely to stand out even more and be at greater risk of victimisation and violence in a prison for women”.

The case reminds us that the traditional classification of all people into only two sex/gender categories (either male or female) – entirely based on physical characteristics and reproductive anatomy – is a rather crude and imprecise way of classifying people. However, for the moment, the state continues to insist (despite all the evidence to the contrary) that people can only be classified as either “male” or female” while society also tries to police individuals to conform to male and female gender roles. For the moment this binary classification of people is not being challenged.

But it is against this background that the Equality Court will be asked to consider whether the department of Correctional Services unfairly discriminated against Ms September. The first question the court will have to ask is on what ground the discrimination might have occurred. In some jurisdictions, discrimination against transgender persons is dealt with as either sex discrimination or gender discrimination.

However, using these categories can be misleading as they are generally understood to apply to cases where “men” and “women” are treated differently. It might therefore be more accurate to deal with discrimination against transgender persons on the basis of gender identity.

Currently, the Constitution and PEPUDA prohibit unfair discrimination on any ground including on a long list of specifically mentioned grounds – such as race, sex, gender, sexual orientation and religion. But this is not a closed list, and discrimination can also occur on other grounds not specifically listed in the law. This means that the court can recognise new grounds on which discrimination can occur.

For example, in Hoffmann v South African Airways the Constitutional Court recognised that discrimination can occur on the ground of HIV status – despite the fact that HIV status is not listed in the Constitution as a ground of discrimination. In doing so the Constitutional Court held that HIV positive people are a vulnerable minority. They have been stigmatised and marginalised. Moreover:

“Society’s response to them has forced many of them not to reveal their HIV status for fear of prejudice… In view of the prevailing prejudice against HIV positive people, any discrimination against them can, to my mind, be interpreted as a fresh instance of stigmatisation and I consider this to be an assault on their dignity. The impact of discrimination on HIV positive people is devastating.”

I have no doubt that the same type of reasoning could be applied with regards to discrimination against transgender people. This means that the court might well find that discrimination on the ground of gender identity is an analogous ground of discrimination and that the Constitution and PEPUDA prohibit such discrimination.

The second question the court will then have to ask is whether the discrimination is unfair and hence unlawful. The only way in which the state would be able to show that the discrimination was not unfair, and hence not unlawful, is if it could convince the court that there was a pressing purpose behind the discrimination that completely eradicated the interests of Ms September to be protected from discrimination.

It is unclear what arguments the Department of Correctional Services would be able to advance to justify the discrimination. We already know that their personal prejudices against transgender people would not be a valid justification for discriminating against her. As the Constitutional court emphatically stated in Hoffmannn v South African Airways:

“Prejudice can never justify unfair discrimination. This country has recently emerged from institutionalised prejudice. Our law reports are replete with cases in which prejudice was taken into consideration in denying the rights that we now take for granted. Our constitutional democracy has ushered in a new era – it is an era characterised by respect for human dignity for all human beings. In this era, prejudice and stereotyping have no place. Indeed, if as a nation we are to achieve the goal of equality that we have fashioned in our Constitution we must never tolerate prejudice, either directly or indirectly.”

Even if the court does hand down a progressive judgment protecting the rights of transgender persons, this will not end the deeply entrenched prejudice in society against transgender persons. Nor will it immediately end the hostility of some government officials in the Department of Home Affairs against transgender people. But it may create a legal precedent that could be used in future cases to challenge the various forms of unfair discrimination that transgender South Africans are subjected to. DM