Intersex rights in South Africa

Intersex people in South Africa have some of the same rights as other people, but with significant gaps in protection from non-consensual cosmetic medical interventions and protection from discrimination. The country was the first to explicitly include intersex people in anti-discrimination law.

Intersex rights in South Africa
Protection of physical integrity and bodily autonomyNo
Protection from discriminationYes
Changing M/F sex classificationsYes
MarriageYes
Intersex topics

History

Early and prominent intersex activists include Sally Gross and Nthabiseng Mokoena. Gross, an anti-apartheid and intersex activist, was a founder of Intersex South Africa,[1][2][3] an autonomous intersex community organisation affiliated with Organisation Intersex International.[4]

In 2000, Gross helped to secured the first known mention of intersex in national law,[5][6] with the inclusion of "intersex" within the definition of "sex" in the anti-discrimination law of the Republic of South Africa.[7] Subsequently, she helped to draft legislation[5][8] on the Alteration of Sex Descriptors, and the Promotion of Equality.

In December 2017, African intersex activists published a statement setting out local demands.[9]

Physical integrity and bodily autonomy
  Legal prohibition of non-consensual medical interventions
  Regulatory suspension of non-consensual medical interventions
Further information: Intersex human rights and Intersex medical interventions

In 2016, the African Commission on Human and Peoples' Rights joined other human rights institutions in condemning human rights violations on intersex people, including in medical settings.[10] In 2016, the United Nations Committee on the Rights of the Child issued recommendations to guarantee bodily integrity and self-determination of intersex and other children, and ensure sanctions on perpetrators of harmful practices.[11] The South African government acknowledged that such practices occur in the country.[12][13]

Protection from discrimination
  Explicit protection from discrimination on grounds of sex characteristics
  Explicit protection on grounds of intersex status
  Explicit protection on grounds of intersex within attribute of sex
Main article: Discrimination against intersex people

In South Africa, the Judicial Matters Amendment Act, 2005 (Act 22 of 2005) amended the Promotion of Equality and Prevention of Unfair Discrimination Act, 2000 (Act 4 of 2000) to include intersex within its definition of sex.[14] Sex is one of the prohibited grounds under the act, which means that discrimination on the basis of sex is presumed to be unfair, and therefore prohibited, unless proven otherwise. The act provides that:

'intersex' means a congenital sexual differentiation which is atypical, to whatever degree; 'sex' includes intersex;

— Act 4 of 2000, section 1, as amended[15]

It is not known whether or not Caster Semenya has an intersex condition. However, the controversy surrounding her treatment and sex verification tests has made her a cause célèbre. Prominent South African civic leaders, commentators, politicians, and activists characterised the controversy as racist, as well as an affront to Semenya's privacy and human rights.[16][17]

Identification documents
Main article: Legal recognition of intersex people

The Alteration of Sex Description and Sex Status Act, 2003 (Act 49 of 2003) allows intersex people to change the sex recorded on their official documents. An applicant must submit a medical report indicating that they are intersex as well as a report from a psychologist or social worker indicating that they have lived for at least two years in the corresponding gender role.[18][19]

Marriage

All couples can marry in South Africa, regardless of their characteristics. On 1 December 2005, in the case of Minister of Home Affairs v Fourie, the Constitutional Court ruled that it was unconstitutional for the state to deny to same-sex couples the ability to marry, and gave Parliament one year in which to rectify the situation.[20] On 30 November 2006 the Civil Union Act came into force; despite its title it does provide for same-sex marriages.

Rights advocacy

In 2017, work commenced on a "Model Law on the rights of intersex persons in Africa". A first consultation meeting took place at the Centre for Human Rights at the University of Pretoria.[21]

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See also

References
  1. Gross, Sally (23 February 2000). "The struggle to be Sally" (PDF). The Witness. Archived (PDF) from the original on 6 August 2011.
  2. Gross, Sally (21 February 2000). "The journey from Selwyn to Sally" (PDF). The Witness. Archived (PDF) from the original on 27 May 2016.
  3. In Loving Memory of Founder and Friend - Sally Gross Archived 2014-03-18 at the Wayback Machine, intersex.org.za; accessed 27 July 2015.
  4. Remembering Sally Gross Archived 2014-03-02 at the Wayback Machine, Organisation Intersex International, 21 February 2014
  5. Eighth Day of Intersex: Sally Gross Archived 2014-03-18 at the Wayback Machine, Organisation Intersex International Australia, 2 November 2011
  6. "In memory of Sally Gross ISSA-Intersex Society of South Africa" Archived 2014-03-18 at the Wayback Machine, Intersex Trust Aotearoa New Zealand, 17 February 2014.
  7. Mokoena, Nthabiseng (October 2015), "Remembering Sally, and the intersex movement in South Africa", Intersex Day, archived from the original on 2016-10-09
  8. Updated feature article (2009) Archived 2014-03-18 at the Wayback Machine, intersex.org.za, 2009.
  9. African Intersex Movement (December 2017), Public Statement by the African Intersex Movement, retrieved 2018-09-05
  10. UN Committee against Torture; UN Committee on the Rights of the Child; UN Committee on the Rights of People with Disabilities; UN Subcommittee on Prevention of Torture and other Cruel, Inhuman or Degrading Treatment or Punishment; Juan Méndez, Special Rapporteur on torture and other cruel, inhuman, or degrading treatment or punishment; Dainius Pῡras, Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health; Dubravka Šimonoviæ, Special Rapporteur on violence against women, its causes and consequences; Marta Santos Pais, Special Representative of the UN Secretary-General on Violence against Children; African Commission on Human and Peoples' Rights; Council of Europe Commissioner for Human Rights; Inter-American Commission on Human Rights (October 24, 2016), "Intersex Awareness Day – Wednesday 26 October. End violence and harmful medical practices on intersex children and adults, UN and regional experts urge", Office of the High Commissioner for Human Rights, archived from the original on November 21, 2016CS1 maint: multiple names: authors list (link)
  11. United Nations; Committee on the Rights of the Child (October 27, 2016). "Concluding observations on the second periodic report of South Africa". Archived from the original on February 4, 2017.
  12. "Iranti.org: South Africa and the rights of intersex children". Intersex Day. October 26, 2016. Archived from the original on October 30, 2016.
  13. Collison, Carl (October 27, 2016). "SA joins the global fight to stop unnecessary genital surgery on intersex babies". Mail&Guardian. Archived from the original on October 30, 2016.
  14. "Judicial Matters Amendment Act, No. 22 of 2005, Republic of South Africa, Vol. 487, Cape Town" (PDF). 11 January 2006. Archived (PDF) from the original on 23 July 2015.
  15. "Promotion of Equality and Prevention of Unfair Discrimination Act No. 4 of 2000, as amended" (PDF). 2000. Archived (PDF) from the original on 2013-02-28.
  16. Dixon, Robyn (26 August 2009). "Caster Semenya, South African runner subjected to gender test, gets tumultuous welcome home". Los Angeles Times. Archived from the original on 28 August 2009. Retrieved 29 August 2009.
  17. Sawer, Patrick; Berger, Sebastian (23 August 2009). "Gender row over Caster Semenya makes athlete into a South African cause celebre". The Daily Telegraph. London. Archived from the original on 26 August 2009. Retrieved 27 August 2009.
  18. Alteration of Sex Description and Sex Status Act 49 of 2003 Archived 2017-02-02 at the Wayback Machine, s. 2.
  19. "Amendments in ID Books & Birth Certificates". Department of Home Affairs. Archived from the original on 27 February 2017. Retrieved 2 February 2017.
  20. "Parliament ordered to allow gay marriage". Mail & Guardian. 1 December 2005. Archived from the original on 12 October 2012. Retrieved 10 July 2011.
  21. University of Pretoria (April 26, 2017), Centre for Human Rights hosts first consultative meeting to discuss draft model law on the rights of intersex persons in Africa, archived from the original on January 4, 2018

Bibliography
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