Proposed identity law changes ‘send a strong message’

Queer rights activists welcome the suggested amendments, which could see the ID number format change, as a sign of inclusion despite concerns over a potential ‘third gender’ category.

For Sizwe Sithole, everyday activities such as shopping, stepping into a bank and driving his car are often a cause for great anxiety. A transgender man, Sithole’s appearance is in stark contrast with what is stated in his identity document: female.

“Every time I use my ID, it’s like I am outing myself each and every time. Because when I go to the stores, I use my bank card, it says ‘Ms’. And you know, my physical appearance is something different. So I always have to explain to the cashiers that, ‘No, this is not my wife’s card. It is me.’” 

There is, he says, an ever-present potential for danger. “If I am driving at night, I drive with the sense that I am a man and people see and receive me as a man. People relate to me as a Mr and a sir. But immediately, when I take out my driver’s licence, it is a totally different story. The cops are like, ‘Sir, this card is saying female, but this is not a female I am talking to here.’ So I have to explain myself over and over and over. And in South Africa you can never say you are safe with the cops. So for me that is an outing that can be dangerous for me as a trans person. There is always, always that element of hidden danger that one has to always be cautious of.” 

After what he describes as a “painful and embarrassing” incident in September last year, while trying to board a flight, the 36-year-old says he reached his “breaking point” and applied to have his gender marker changed. 

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“It took me long to do the process, because I was always afraid [about going] to home affairs [as a trans person]. You know, one is always cautious and always has to be safe when going to service providers. But now that I have done it, I’m still waiting. And that is a frustration for me. Especially now with the pandemic, you know, it’s worse because the section [in the Department of Home Affairs] which is dealing with this is closed. It is totally closed because we are on [lockdown] level three. And that is a frustration for a person like me because that means each time I am using my ID, I am outed automatically. So it is not a nice experience for one to be going through.” 

The department recently gazetted its Draft Identity Management Policy, partly in a bid to make South Africa’s identification system more inclusive.

“Gender and sexual identity minorities,” the document states, “are excluded because the current laws and policies do not cater for changes in the gender/sex attribute of the identity system. They experience discrimination when attempting to register or update their gender in the ID system.”

The structure of an ID number

According to the document, the structure of an ID number, “including its format and length, requires careful consideration of country context and privacy concerns”. Proposed options to make ID numbers more secure, as well as inclusive of gender minorities and intersex persons, include either a random number “generated using mathematical algorithms and containing no information about the person” or retaining the current ID number format, but have three sex categories: male, female and intersex.

Either way, the document states, “the format of the new ID number must be as inclusive as possible, especially when it comes to intersex and transgender persons”.

“The seventh digit of the ID number is a gender marker that indicates whether the ID holder is a female or a male. This is the most contentious digit for non-binary or transgender persons as it does not reflect their sexual orientation [sic] or gender. To accommodate non-binary, transgender and intersex persons, it is recommended that an alternative digit or letter ‘X’ be used for this population. This will be a subject of further consultation with the affected population. This change will not affect the current composition of the ID number for males and females,” it adds. 

Jabu Pereira is the executive director of trans, intersex and lesbian rights organisation Iranti. “What this policy is attempting to do is recognise that South Africa is not strictly a society made up of cisgender males and females,” says Pereira. “In the document’s glossary, it defines what transgender is, what intersex is and what non-binary is. And this is a rare thing to see in many states … [This is] a huge shift for the government.”  

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Pereira adds, however, that there are concerns with the proposed “third gender” category. 

“We are opposed to that. We believe there should be male, female and ‘undetermined’. Intersex is not a gender identity. And the government does not fully understand this in the policy document. So in relation to intersex persons … we believe that a third gender category is going to stigmatise and add stigma to people, which is highly problematic. We want parents to have the option of the category ‘undetermined’, because with intersex-born children, medical practitioners are the biggest violators [of their rights], often compelling parents to decide what gender they want an intersex-born child to be at the time of birth.” 

Pereira adds that the policy document also confuses sexual identities and gender identities. “This is something we need to correct because the identity document is not related to sexual orientation. It is relating to sex and gender identity. Not sexual orientation.”  

These concerns notwithstanding, Pereira says the proposed amendments are “highly commendable of [the government]. I think they are on the right track.” 

‘A great thing’

Intersex South Africa’s Tebogo Makwati concurs, welcoming the proposed changes as “a great thing”.

“It would send out a strong message that binary is wrong. We would be [telling] generations to come: ‘You are beyond a binary. You are just a human being’. It would also alleviate a lot of pain in this country. These binaries have perpetuated violence in that it has classified how people must live. So I think this would give an opportunity to people to decide how they want to live. It will show people that you can be whoever you want to be.”

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Chris McLachlan is a clinical psychologist and chairperson of the board of the Professional Association for Transgender Health South Africa.

“For intersex and gender-nonconforming people especially, it will alleviate the situation of having to be either male or female, as well as the anxiety and depression that can be caused by it,” says McLachlan. “They can just be themselves. And maybe, just maybe, that will spill over into society and we stop placing people in categories that they have to live up to or perform within the world. 

“People will start rethinking what gender is. Even for people who have never had any conflict between their sex assigned at birth and their gender identity, it is good to look at gender … and how we construct it. Because the moment we start reflecting on gender, it creates a space of becoming aware of the diversity in it. So I think this [proposed] change by home affairs could lead to a change … that ultimately will lead to a society that can celebrate diversity.”

Sithole lets out a deep sigh as he contemplates what a gender-free ID document would mean to him. “Yoh, bra. That is… yoh, this is one frustrating issue. It is really a painful thing one can go through. As a transgender person who is frustrated and tired, having a random number in my ID that is not outing me every time I use it would be great. And it would be a great start to trying to roll out change in the home affairs system.”

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