Quote of the week

As seductive as certain perspectives of international law may appear to those who disagree with the outcome of the interpretative exercise conducted by this Court in the contempt judgment, sight must not be lost of the proper place of international law, especially in respect of an application for rescission. The approach that my Brother adopts may be apposite in the context of an appeal, where a court is enjoined to consider whether the court a quo erred in its interpretation of the law. Although it should be clear by now, I shall repeat it once more: this is not an appeal, for this Court’s orders are not appealable. I am deeply concerned that seeking to rely on articles of the ICCPR as a basis for rescission constitutes nothing more than sophistry.

Khampepe J
Zuma v Secretary of the Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the Public Sector Including Organs of State and Others (CCT 52/21) [2021] ZACC 28 (17 September 2021)
11 April 2007

A man by any other name looks just as sweet…

Julio Cuesta on Tuesday became the first person in Spain legally to change their sex/gender description without undergoing surgery under a new law approved last month. Julio, who was born a woman, obtained the right to have his gender description officially altered to that of a man after taking hormones for at least two years.

In South Africa, the Alteration of Sex Description and Sex Status Act of 2003 also provides for a person to have his or her sex description changed without having surgery. Unfortunately, the officials at the Department of Home Affairs have failed to apply this law correctly and have refused applications of individuals who have not “completed” the surgery. Many individuals would like to do the surgery but cannot afford it, while others are happy not to do all the surgery available.

(Disclosure: I have been advising the group Gender DynamiX, who is now assisting individuals to challenge the decisions of the Home Affairs officials.)

Of course, despite all the evidence to the contrary, society continues to essentialise sex and gender as fixed, unchanging and exclusive categories. Many people experience their sex or their gender in more fluid terms. Some do not physically conform to the categories of “male” or “female”, while others do not associate themselves with the sex or gender that their bodies are supposed to reflect.

Yet from the moment we are born, we are policed and disciplined to ensure that we conform to prevailing societal sex and gender stereotypes. This is deeply oppressive to all of us because it diminishes our ability to make choices about our sex and gender identity and behaviour. However, because sex and gender policing is so all pervasive in our society, it is difficult to bring across the human rights angle to this issue.

The law therefore helps to perpetuate the existing oppressive sex/gender regime, enforcing a certain cultural construction of the world on all of us. Why should it matter to the state or anyone else whether we call ourselves a “man”, a “woman” or anything else? Why is it important for someone with a penis not to be effeminate or for someone with a vagina to wear a dress? There is nothing inherently good about these categories and there surely is no need to limit our sex or gender identities to these two categories only.

It is time that human rights law take note of the oppressive nature of the sex/gender dichotomy and begin to seek ways to accommodate a wider variety of sex and gender identities in our society. A start can be made by applying the existing law properly.

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