2022 census discriminates against LGBTQIA+ community

The 2022 census is underway. However, the questionnaire will not capture an accurate portrait of the demographics of South Africa. The LGBTQIA+ community has accused Statistics South Africa (Stats SA) of discrimination for failing to enumerate the LGBTQIA+ community in a meaningful way. 

Stats SA announced the 2022 census questionnaire includes a question relating to sex that provides only two options: male or female. In a “state of readiness” press briefing on 25 January, Stats SA’s acting deputy director general Nozipho Tshabalala confirmed that this was the case. She stated that “the sex question refers to the biological makeup of a person or the sex that is assigned at birth.”

LGBTQIA+ rights advocacy group Iranti pointed out that transgender and intersex people will not be counted in the upcoming census. The census counts only the cisgender population and, thus, excludes a significant part of South Africa’s population. 

Additionally, the questionnaire does not include any questions relating to sexual orientation and will not yield any data relating to the rest of the LGBTQIA+ community. Stats SA’s justification for this exclusion is the complexity of asking questions relating to LGBTQIA+ identities. 

Tshabalala admitted at the press conference that Stats SA had not made sufficient preparation to count LGBTQIA+ South Africans. She explained that including questions relating to LGBTQIA+ identities require an array of questions that need to be tested and piloted intensively for the census to be able to measure that group. 

The failure to make such preparations is a glaring omission by Stats SA. The LGBTQIA+ community has been routinely excluded from the population census since the first one in 1996. Stats SA has had 10 years since the previous census in 2011 to better prepare questions for the LGBTQIA+ community, yet it failed to do so.

Constitutional rights

This is contrary to the Constitution, which recognises sexual orientation as an essential part of the equality provisions enshrined in section nine. The current structure of the census renders LGBTQIA+ people invisible and is not in line with the Constitution, which enshrines the rights to equality and self-determination.

“We regard this census as unconstitutional because its very design is premised on exclusion,” said Iranti executive director Jabu Pereira. “And if a census excludes a significant population such as the LGBTI community, then, by its very nature, it encourages the state to erase our very existence.” 

During the press briefing, Stats SA pledged to research, test, and pilot questions to better enumerate the LGBTQIA+ community. Nolwazi Tusini, the communications and media manager for Iranti, told the Mail & Guardian that the organisation wants the questionnaire to change to reflect South Africa’s diversity and the constitutionally protected right to equality. 

Iranti advises that the questionnaire should give intersex people an option for a sex-based question and that an additional question about gender identity needs to be included. 

In addition, Iranti is calling for work on developing a new, more inclusive questionnaire to begin this year after the conclusion of the current census and Stats SA has committed to meeting the organisation in March to work towards this goal. 

However, these efforts can be seen as a stop-gap — they are too little and too late. Given that the next census may take place only in 10 years’ time, the data collected this year will adversely affect transgender and intersex communities. 

Lack of gender-affirming public healthcare

Tusini maintains that the census project has already had a negative effect on the transgender and intersex community. She points to the lack of gender-affirming public healthcare in South Africa. Only six of South Africa’s public hospitals offer gender-affirming healthcare services. 

Intersex-specific care is provided at those facilities, but the South African Association of Paediatric Surgeons lists seven paediatric centres that still practice intersex genital mutilation. The government has been urged to ban this practice, but no action has been taken.

In other public-sector facilities, services are offered on an ad hoc basis, with most services being clustered within dense urban areas to the exclusion of rural communities. Access to services is dependent on whether you live close to these facilities and on the length of their waiting lists. For instance, Groote Schuur Hospital in Cape Town has a waiting list of up to 25 years for gender-affirmation surgery. As a result, many trans people either resort to private healthcare, often paying more than R500 000, or are forced to seek surgery internationally.

In recent years, government inactions have created the impression it regards this access as adequate. This is a strange decision to make, according to Iranti, given that Stats SA has never enumerated LGBTQIA+ people in the census. Data from the census is used to plan and determine access to critical resources. 

“If the LGBTQIA+ community is not enumerated, then how can [they] ever hope to gain access to resources and the basics such as healthcare, education and housing,” says Tusini.

In addition, many transgender and intersex people face difficulties with changing their sex descriptors in their IDs to reflect their gender identity. The Alternation of Sex Description and Sex Status Act allows transgender people who have begun to medically transition to change their gender marker, but there is no specific law that allows transgender and intersex people to amend their gender markers. 

Many LGBTQIA+ activists have derided the current level of access to gender-affirming healthcare as inadequate, yet the state does little to address this inadequacy. Activists have lobbied parliament to introduce specific legislation dealing with the changing of gender markers, particularly to remove the barrier of medical transitions and the introduction of a third gender. 

The department of home affairs published a draft Official Identity Management Policy in December 2020 to address these concerns, but there has been no follow-up since its publication more than a year ago.

Ministers have previously pledged themselves to improve access to healthcare and provide adequate legislative recognition. The most recent commitment was by Minister of Justice and Constitutional Development Ronald Lamola at the SA-EU dialogue of Intersex and Transgender Rights in South Africa, held on 4 and 5 November last year. 

“Beyond access to resources and legislative recongition, trans and intersex people exist and live in this country and matter,” said Tusini. “They must be counted so that the census data reflect South Africa’s diversity and the constitutionally protected right to equality. The Constitution explicitly mentions sexual orientation and gender as areas of protection, and the census should reflect this and measure these demographics. If it is also to count sex, then it should give intersex as an option.”

The government’s lack of attention to the LGBTQIA+ community was evident in President Cyril Ramaphosa’s State of the Nation address last week. In his speech, Ramaphosa said, “to be effective, [the] social compact needs to include every South African and every party of our society”. Yet, he failed to mention the LGBTQIA+ community a single time.

This exclusion, by the highest office in the land, trickles down throughout the government. There is a lack of adequate LGBTQIA+ representation in all government sectors, despite numerous civil society organisations existing to provide government branches with critical input to improve access to resources. The result is critical exclusions in policy-making, such as the 2022 census failing to enumerate transgender, intersex and nonbinary people, to the detriment of those communities.

Cassandra Roxburgh is a Cape Town-based transfeminine freelance journalist.

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Cassandra Roxburgh
Cassandra Roxburgh is a Cape Town-based transfeminine freelance journalist.

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