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intersex and the law

Intersex has become the focus of public interest because of the media storm around the questioning of Caster Semenya’s sex. Our exemplary post-apartheid Constitution of 1996, with its Bill of Rights and Equality Clause, seemed at first glance to afford intersexed South Africans unassailable legal protection.

But my experience as an intersexed person showed me that this was not so. The law has been bolstered since then, but awareness of this fact is needed to afford protection to intersexed people in practice.

An intersexed person is one whose sexual characteristics from birth do not follow the typical paths of differentiation that we label “male” and “female”. This might involve ambiguity of the external genitalia, chromosomal pattern, internal reproductive structures, the gonads or the balance of hormones.

“Hermaphrodite” is probably a more familiar term than “intersexed”. With its Greek mythological connotations, however, it makes those like me sound like mythological creatures. We are real people: “intersex” describes us more adequately.

A United States study estimates that one in 500 people displays non-typical sexual differentiation that is so marked that it attracts medical — generally surgical — intervention. By common consent South Africa has possibly the highest prevalence in the world.

In 1997, as a direct result of medical evidence that I am intersexed, I ceased to be a human being in South African law despite the Bill of Rights. It took 15 months to achieve recognition of my humanity in law. So the effect of being intersexed on one’s civil and human rights is of deep interest and concern to me.

Before 2006, when an obscure judicial amendment — comprising two simple definitions — was signed into law, being found to be intersexed opened up all one’s rights to challenge. But the promulgation of the Judicial Matters Amendment Act of 2005 changed this technically.

Theoretically, this Act guaranteed protection to the intersexed. Two statutory definitions turned the technical trick. The trouble was that the amendment entered the statute book by stealth: its existence and far-reaching implications have evaded attention until now in a context in which the invisibility of the intersexed, bar a handful of notable exceptions, testifies to an entrenched culture of shame, secrecy and stigmatisation.

The amendment was drafted because an American case made it clear to me that the Equality Clause did not protect the intersexed. An American federal court found that the firing of a woman because she was born intersexed did not breach a Pennsylvania equality statute similar to our Equality Clause.

The statute forbade discrimination on grounds of sex. The court argued that “sex”, undefined in the statute, was to be understood in its ordinary dictionary sense. So it referred to the state of being “male and not female” or “female and not male”. The upshot: it didn’t protect the intersexed.

Our Equality Clause rules discrimination on certain listed grounds, including sex, unfair unless and until proved fair, but “sex” was not defined in statute. The dictionary definition of “sex” — male, female and nothing else — therefore governed its interpretation. “Human being” and “[natural] person” are also defined as having a sex in exclusively binary terms. The intersexed, somewhere in between, could thus be argued to be neither human beings nor natural persons.

The potential consequences were terrifying. Intersex was an “analogical ground” of discrimination rather than a listed ground in the Equality Clause. Unlike discrimination on a listed ground, discrimination on an analogical ground is deemed fair until proven unfair. The burden of proof rests on the victims.

In South African law, one needs locus standi, the right to address the court, to mount a legal challenge. Since the intersexed did not fit workaday definitions of “human beings” and “[natural] persons”, arguably they lacked the locus standi to challenge this or any other type of discrimination. It followed that the intersexed, because they were intersexed, had no secure rights — not even to dignity or to life itself.

The obvious remedy was to add “intersex” directly to the Equality Clause’s listed grounds. Seeking this, I was introduced to the ANC’s Fatima Chohan-Khota MP, a lawyer and a member (later chairperson) of the powerful justice and constitutional affairs portfolio committee.

It became clear that amendment of the Equality Clause wasn’t feasible. However, Chohan-Khota alerted me to the Promotion of Equality and Prevention of Unfair Discrimination Act, governing judicial interpretation of the Equality Clause.

Going through it, I realised that the trick could be turned surprisingly simply. The Act begins with a schedule of definitions. Adding two definitions — “‘sex’ includes intersex” and “‘intersex’ means a congenital sexual differentiation which is atypical, to whatever degree” — would make intersex part of the meaning of “sex” in the Equality Clause.

I drafted the definitions and Chohan-Khota tabled them — but the process dragged on. Some years later, a chance encounter with Jody Kollapen, the chairperson of the South African Human Rights Commission (SAHRC), led to a workshop on the regulation of non-consensual genital surgery on intersexed children and consideration of the intersexed in scrutinising draft legislation. Crucially, the SAHRC supported insertion of the definitions into the equality Act.

And so, in January 2006, the definitions became law in the Judicial Matters Amendment Act, 2005. Their technical implications are substantial. People like me had not had an unimpugnable right — even to life — before. Now, by statute, we are bona fide human beings in South African law, protected from discrimination on the grounds that we are intersexed.

Sally Gross is the founder of Intersex South Africa. See www.intersex.org.za

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