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Cape Town – Three transgender women and their spouses have taken the Department of Home Affairs to court to force it to change their sex description, the Legal Resources Centre said on Thursday.
The centre, which is representing the couples, had launched an application in the Western Cape High Court.
“[We seek] to compel the department to amend their sex description on the national population register and on their birth certificates, and issue them with new identity numbers,” it said in a statement.
South Africans can legally change their sexual identity through the Alteration of Sex Description and Sex Status Act 49 of 2003.
The centre said the department however argued that the existing civil marriages of the couples, which are heterosexual, precluded the department from amending the sex descriptor as it would amount to recognition of a same-sex marriage under the Marriages Act.
The couples are all married in terms of the Marriages Act 25 of 1961.
Legal Resources Centre advocate Mandy Mudarikwa explained that homosexual relationships are recognised through the Civil Unions Act of 2006, but not through the Marriages Act.
South African law makes no provision for the status of marriages to be changed between the Marriages Act and the Civil Unions Act, Mudarikwa told News24.
The centre said that the difficulty with the interpretation of the law resulted in the removal of one of the marriages from the National Population Register.
“Two of our clients were advised to get divorced in order to give effect to their gender identity rights,” the centre said.
A positive outcome in the case would go a long way to realising the rights of transgender persons to dignity, family life, bodily integrity, and equal treatment before the law.
The department did not respond to a request for comment.
