Introduction
This report presents information on public opinion about transgender people and their rights in South Africa. We analyzed data from the Global Attitudes Toward Transgender People survey, South Africa panel, to provide new information on the attitudes towards transgender people and their rights and status in South African society.
Legal Status of Transgender People in South Africa
South Africa is often seen as one of the most progressive countries in terms of advancing the rights of sexual and gender minorities. Section 9 of the South African Constitution explicitly prohibits discrimination on the basis of gender, sex, and sexual orientation, among other categories. Notably, it was the first country to adopt a constitution that explicitly prohibits discrimination on the basis of sexual orientation. While gender identity is not an explicitly protected category, courts have interpreted that it falls under non-discrimination protection on the basis of gender. However, despite these constitutional protections, lesbian, gay, bisexual, and transgender (LGBT) people face violence and harassment in their everyday lives. A survey of LGBT South Africans indicated that 42% of transgender respondents fear discrimination because they are transgender.
In recent years, some lower courts have applied the constitutional prohibition on discrimination to cases involving harassment of transgender persons. In 2011, the Equality Court in Lallu v. Van Staden held that a neighbor’s verbal abuse of a transgender woman amounted to harassment, hate speech, and unfair discrimination. The Court awarded damages for infringement upon the transgender woman’s dignity and costs for remedial psychological counselling. In 2014, a magistrate’s court ordered the Limpopo Department of Education to pay R60,000 (approximately 4,000 USD) in personal compensation to Nare Mphela, a transgender woman from Ga-Matlala village, who faced discrimination from her school principal, harassment in the school toilets, and physical assault when schoolmates grabbed her genitals to “find out what is there.” While there have not been further cases addressing hate speech directed at transgender people, this case has set a precedent that could be used in future litigation.
Likewise, in 2019 the Equality Court in the Western Cape handed down a judgment in the matter of September v. Subramoney N.O and Others regarding a transgender woman serving a prison sentence inside a male correctional facility. While incarcerated, prison officials denied her the right to express her gender identity through her hairstyle, dress, female underwear, or small amounts of make-up. Ms. Jade September was subjected to verbal abuse and harassment from prison officials, and at one time was placed in segregated confinement after trying to express her gender. The Court held that the refusal to allow a transgender person to express their gender identity is unfair discrimination that violates both the right to equality and section 8 (Prohibition of unfair discrimination on ground of gender) of the Promotion of Equality and Prevention of Unfair Discrimination Act (PEPUDA). It further ruled that prison policies granting authority to discriminate against Ms. September (i.e., Standing Orders of Personal Hygiene) were unlawful. The Court ordered prison officials to allow Ms. September and others similarly placed to wear female underwear, keep their hair long, and wear make-up. Furthermore, it ordered officials to address her as a woman through the use of female pronouns, and the Department of Correctional Services was ordered to introduce transgender sensitivity training for current and new employees. The case is notable for being one of the first to use the Yogyakarta Principles, a set of guidelines towards implementing international human rights law in regards to sexual orientation and gender identity, as an authoritative source in interpreting the rights of transgender and gender diverse people in the South African context.
The Alteration of Sex Description and Sex Status Act 49 of 2003 allows transgender South Africans to change their legal gender markers; however, the strict requirements of the law impose barriers on legal gender recognition that leave many transgender people without accurate identity documents. The Act requires that medical or surgical gender reassignment procedures have taken place. The statute defines “gender reassignment” to mean a process undertaken for the purpose of reassigning a person’s sex by changing physiological or other sexual characteristics and includes non-surgical interventions such as hormone therapy. An application to change gender marker must be submitted along with a birth certificate and a confirmation from two medical practitioners that medical or surgical gender reassignment procedures have taken place.
Because the law requires a medical diagnosis along with some sort of medical intervention, many transgender people cannot obtain legal gender recognition as a result. Such interventions may be costly as well as inaccessible, particularly for poor working class, peri-urban, or rural transgender persons, as the providers for gender-affirming procedures are usually only found within major cities. Moreover, the law prevents those who do not desire reassignment procedures in the first place from obtaining proper legal documents, including those who are unable to undergo procedures due to health factors. This has far-reaching consequences wherever transgender people need to produce documentation, essentially prohibiting access to basic services such as health care, education, employment, and travel; receiving social grants; or undertaking essential tasks such as opening a bank account, accessing temporary housing, acquiring a driving license, and voting.
While there are no restrictions for military service on the basis of sexual orientation, there are currently no policies explicitly addressing military service by transgender persons. There are also no laws that specifically address access to bathrooms according to gender identity. With regard to marriage, the Civil Union Act allows same-sex marriages in South Africa and allows for transgender people to marry someone of the same gender identity. However, the patchwork of statutes addressing marriage in South Africa may complicate this in practice for transgender persons. In a 2017 case, KOS and Others v. Minister of Home Affairs and Others, three married persons who recently transitioned applied to the Department of Home Affairs to have their gender marker changed on various ID documents. For one of the couples, the Department refused the request and wanted the couple to divorce and remarry under the Civil Union Act, stating that their (previously heterosexual) marriage was sanctioned under the Marriage Act, which does not extend to same-sex marriages. The Court held that the Department’s denial of the application was unconstitutional and violated the person’s rights to administrative justice, equality, and human dignity, and ordered that the alteration of the sex description on a person’s birth register should be granted irrespective of the person’s marital status – in particular, regardless of the statute under which the partnership was solemnized.
Empirical Research on Transgender People in South Africa
There is limited empirical research that explores issues impacting transgender people in South Africa that is not exclusively in the context of HIV/AIDS. Some available research focuses on the experiences of transgender people in accessing health care. One study conducted in Kwa-Zulu Natal found that transgender people are often met with ignorance and micro-aggressions by healthcare workers, including being forced to assume the gender identity concordant with their sex assigned at birth in order to receive care. Another report similarly documented that transgender people faced transphobic slurs and discrimination in accessing care, including professional stigma among clinicians against treating transgender patients that limits patient access to gender-affirming care and surgery.
A study of transgender youth in school documented that transgender students are bullied and discriminated against by other students. It found that transgender and gender diverse/gender non-conforming students are also subjected to bullying by teachers and staff. The bullying can be verbal and physical. The severity of the bullying varies with the type of school and the way the transgender youth expresses their gender identity, and whether or not their gender identity and sex characteristics are known to others. Bullying tends to be more common in high school than primary school, possibly corresponding to ages that students express themselves as transgender or gender nonconforming.
Perhaps the most comprehensive study of transgender people in South Africa, Trans Rural Narratives, was published by human rights NGO Gender DynamiX. This study employs Black feminist, trans, queer, and de-colonial methodologies to amplify the voices and visibility of rural-based transgender and gender-diverse persons. The book describes the experiences of transgender South Africans across a variety of areas of social and political engagement including access to information and language barriers, family and community acceptance, expectations of violence and rape, accessing inclusive mental and medical health, and experiences with the legal system.
South Africa may be progressive in terms of some of the legal protections afforded to transgender people, but, as this survey shows, the law means little when the communities that people live in still believe that transgender people should not be a part of those communities because they are “violating” culture and tradition. By elucidating the attitudes of South Africans towards transgender people, this survey adds to that research and sheds light onto the lived reality of transgender people in South Africa.