Marriage ruling is a big victory for transgender rights

A judgment in the Western Cape High Court has brought relief to transgender people whose gender could not be changed by the department or who were advised to divorce and remarry.

Petronella*‚ a transgender person who changed his gender to that of a female in the National Population Register‚ found that her marriage to her partner of 18 years was removed from the National Population Register.

Another transgender person‚ Georgina*‚ was advised to divorce her wife and remarry under the Civil Union Act for her new gender to be changed as the computer system would not allow her to register her gender.

However‚ Georgina saw “no need to get a divorce to satisfy a computer system” and her application to change her gender was refused.

The court asked that the real names of the couples not be disclosed.

The case revolved around three women and their spouses‚ who had taken the Department of Home Affairs to court.

In two cases‚ the department had refused to change their gender description.

In another case‚ the department had deleted the marriage of Petronella in order to register the change in gender in the population register.

The department had argued that the amendments to the register could not be made since the couples had been married in terms of the Marriages Act 25 of 1961‚ which applies to heterosexuals.

Same-sex marriages are recognised under the Civil Union Act of 2006.

The Legal Resources Centre (LRC) took up the case after Petronella and her spouse had their marriage deleted from the National Population Register‚ while two others were advised to get divorced in order to give effect to their gender rights.

In its judgment the court ruled the Department of Home Affairs’ failure to deal with their applications to change their gender status was unlawful.

The court ordered that the department reinstate Petronella’s marriage on the population register.

Petronella was born a man in 1971 and experienced gender dysphoria‚ the self-awareness that she was trapped in a male body‚ at an early age.

When she told her father that she was not in fact a boy‚ she was given a severe beating and later compelled by her father to participate in what was regarded as masculinising activities.

Petronella married her wife in 1997 but had told her wife about her gender dysphoria before the marriage.

She commenced with the process of physically transitioning in 2012 and approached the department of home affairs with a view to having her names and sex descriptor changed.

The official she met told her that it would be better to first change her names and then apply for her sex description to be altered.

The name change went smoothly‚ but the alteration of her sex description hit an obstacle.

She was told to bring her wife so that she could get a replacement identity document.

The department informed Petronella that as a consequence of the registration of her sex/gender change‚ the department had to delete its record of their marriage.

The department’s system now reflected they were never married.

In another case‚ Georgina‚ who was born in 1953 and experienced gender dysphoria at an early age‚ was married in 1998.

After changing her forenames in 2013‚ she wanted to change her gender to that of a female‚ she was told by the department its computer system would not allow an amendment to her gender as she was married in terms of the Marriage Act.

Georgina was advised to divorce her wife and remarry under the Civil Union Act.

She refused as she saw no need to get a divorce to satisfy a computer system.

* These are not their real names which cannot be published because of the court order that they not be named.