Human Rights

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Desperate Times, Desperate Measures…

Published January 8, 2015 by transfeminists

What does Nadia Swanepoel’s recent hunger strike mean for transgender South Africans?

By Leigh Ann van der Merwe
8 January 2014

The common phrase “desperate times calls for desperate measures” gained new meaning when 25 year old Nadia Swanepoel went onto a hunger strike in order to get a reaction from the Department of Home Affairs about her application to have her gender amended following a gender transition.

Nadia’s story made headlines in several publications and other news agencies. She went onto a hunger strike for five days in an attempt to get the Department of Home Affairs to amend her identity documents to reflect her new status as a woman.

According to the Alteration of Sex Description Act 49 of 2003,
“….Any person whose sexual characteristics have been altered by surgical or medical treatment or by evolvement through natural development resulting in gender reassignment, or any person who is intersexed may apply to the Director-General of National Department of Home Affairs for the alteration of the sex description on his or her birth register”.

Home Affairs

Yet, this is just another beautifully written piece of legislation with no real implementation, as was proved in the Nadia Swanepoel case. South Africa is a country with some of the best-written laws. It is one of the only countries in the world that provide constitutional protection on the basis of sexual orientation and gender identity. The burning question, however, is whether gender identity, as outlined in the Constitution is meant to be interpreted in favor of transgender persons, or is it meant to be interpreted to be addressing women’s (cis-gender) rights only.

One of the problems related to Act 49 is the ambiguity of the language in the Act. There seem to be confusion about the interpretation of the wording natural evolvement. Is this meant to be addressing intersex persons, or could the same wording be applied to, for example, a transgender person who has only undergone a social transition? “The fact that there are no guidelines or regulations for this legislation further complicates this aspect”, says Busi Deyi, Research Coordinator of Cape Town organization, Gender DynamiX. The application process for gender rectification is also quite rigorous and time consuming. Following a very technical application process requiring two doctors letter, several DHA forms, new finger prints taken, set off a bureaucratic process with a never ending wait.

Bringing a community voice to this problem, a trans man from Johannesburg who chose to remain anonymous said he first applied for gender rectification with the Department Home Affairs office in Johannesburg in 2013. His story is not a far cry from that of Nadia Swanepoel. He has been given the run around by the department of Home Affairs for over a year now. He has been referred to different sub departments within DHA and has spoken to several people about the issue. As a last resort, he turned to the NGO’s working on gender issues to take up his problem with the DHA. Only now, even the NGO’s need written consent from their constituents to follow up cases with DHA on their behalf, another screw added to an already bureaucratic wheel.

This comes at a high personal and emotional cost for trans people who are already marginalized within their communities and often their families too. “I am working as a quantity surveyor and need to sort out my drivers license as part of my job. This is on hold because my application is somewhere in the system”. This also comes at a high price emotionally. “Often trans persons are asked incredibly intrusive questions with regards to their genitalia and this is a traumatizing experience for a lot of persons”, said Deyi, and some are just pushed to desperation in the search for gender recognition. In an interview with etv, Swanepoel said she would never have taken on this hunger strike if the DHA responded to her application in reasonable time and manner.

There is no doubt that there must be change within DHA. Deyi says there have been past and ongoing advocacy efforts to change the situation for trans people applying for gender rectification. “Home Affairs must take the Constitutions call for organs of state to respect, protect and promote the rights contained within the Bill of Rights”, she concludes.

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