Kenyan students who are presumed to be gay are often kicked out of school, but queer activists are putting this practice on notice. (AFP)
After waiting for more than six months for her identity document with the gender marker removed, Seoketsi Tshepo Mooketsi is hoping the department of home affairs will speed up the process of amending the Alteration of Sex Description and Sex Status Act 49, seen by activists as making it difficult to navigate life as a transgender or intersex person.
They say the law — which provides prescriptions for legal gender recognition — is lacking in terms of directives, time frames and standard operating procedures and are also opposed to the requirement for two healthcare providers to confirm the medical treatment of trans people who want to have their gender marker changed, a requirement they say is “dehumanising” and gives too much power to healthcare providers.
The department of home affairs is set to present an official identity management policy to replace Act 49 to parliament in March, with an identity number for non-binary people.
“We are going to change the current ID number to make sure that it accommodates transgender people,” said Sihle Mthiyane, the chief director for policy and strategic management at the home affairs department.
“The current ID number is binary which is unconstitutional so we are proposing that a gender neutral number be made available at birth to avoid issues that are related to intersex persons,” he said during a policy meeting on the rights of transgender and intersex people between the South African government, the European Union and civil society organisations.
“We are going to parliament with these policies by March. If the cabinet approves them, then we are moving to a gender-less identity,” Mthiyane said.
The announcement is good news for Mooketsi who was not able to exercise her democratic right to vote in the recent local government elections because she does not have an identity document.
For that reason, Mooketsi has also not been able to get vaccinated against Covid-19 and feels she lives in a country “that forgets that we all matter”. For her, using her old ID leads to questions about her sexuality as well as her identity, exposing her to stigma where she always has to explain why she identifies as a woman when her ID describes her as a man.
“We do not choose to be trans,” Mooketsi explained. “Why would you choose to be the most hated person in society, the most victimised, the person that, when she goes to a police station to report a rape case, gets laughed at and asked how a man of her stature got raped? These things that continue to disempower us are hurting.”
Growing up in the North West, these experiences were a constant reminder that society was not open to accepting her as a trans woman, something that she thinks is also a reality at the home affairs department. Getting an ID book as a trans person, she argues, should take the same amount of time it does for cisgender people, who sometimes only have to wait about seven days.
“How would you feel if you had to wait for so long to get your ID?” asked Mooeketsi, adding that the home affairs department’s Mthiyane “needs to act on the promise that he made because an achieved reality means that we are all equal. Do not play with people’s lives and hopes.”
The planned policy is a positive step that could end 18 years of struggle by activists for the rights of trans and non-binary people to be recognised.
“It is definitely a milestone moment for looking at the rights of trans and intersex people in South Africa and in Africa because we have not had such a high-level government engagement [involving the EU and other organisations] on the continent,” said Jabu Pereira, the director at Iranti, a Johannesburg-based media-advocacy organisation, which advocates for the rights of LGBTI+ people, with specific focus on those that are lesbian, transgender and intersex.
“It has not been an easy road, [and] it still is not an easy road because there are a lot of trans people that are struggling with changing their gender markers on their documents, so as we are celebrating a future, we have to look at the present struggle with the department,” Pereira said.
Access to affordable gender-affirming care is another serious challenge for transgender people: The waiting list for gender-affirming surgery at Groote Schuur Hospital in Cape Town is more than 20 years.
““Even if you want to opt for hormone therapy, it is not that accessible, it is not free and it is quite costly. That is an area that needs working on because you cannot just walk into a facility and get surgery or hormones or even just counselling,” said Pereira.
“Many people who cannot afford hormone therapy are forced onto the black market.”
Dr Tlaleng Mofokeng, the United Nations special rapporteur on health, urged the South African government to work hard to restore the trust of intersex and trans people whose rights have long been violated.
“There are already international standards and protocols around equality, non-discrimination; we already have regional instruments like the resolution 275 of the African Union — we have our Constitution in the country, so we could look at all these different levels for accountability,” said Mofokeng.
“But it requires an acceptance that there have been past, current and unfortunately, there will be ongoing violations especially when government is not as agile and responsive . . . to have policy that is truly inclusive, and practical guidelines in the different departments to guide the people that government hired to do this work on its behalf.”
Implementation of government policies, including the proposed official identity management policy, should be a priority, Mofokeng added.