/ 3 March 2022

Nonbinary? SA’s census excludes you

Safrica Population Census
Statistics South Africa fieldworkers use their tablet computer devices as they prepare to conduct surveys on homeless people during the population and housing census at Marabastad in Pretoria on February 2, 2022. South Africans will be counted digitally for the first time from 3 February to March 2022 as part the fourth census since the of end of Apartheid. - South Africa will overnight Wednesday launch its once-in-a-decade population census to collect data that will help the government's policy formulation and planning, the statistics agency has said. (Phill Magakoe /AFP via Getty Images)

Are you male or female, man or woman? This is a question in South Africa’s national census, to be concluded this month. From the lesbian, bisexual, gay, transsexual, intersex, queer plus (LGBTIQ+) community it is argued that if you refuse to be identified according to the questionnaire, you are not counted … and thus do not count. 

Language is an important instrument of social control. Without clearly understandable words the law cannot rule fairly. Our daily lives are governed by our rights, duties and fate, from contractual obligations to traffic rules and even whether we go to prison. Yet, legal language is often clumsily complicated, verbose, inflated and pompous. 

Many contracts do not read as if ordinary people agreed on anything; and the purpose of some laws seem like a trouble trap, rather than to guide lawful conduct. Legal texts are often poorly written, as if they were written … by a lawyer. In the 1984 Harvard Law Review, Steven Stark called it “linguistic self-preservation” of the legal profession, designed to convince the non-legal world that they need expensive lawyers. Legal language can be a tool towards power.

Then there is gender. In Western legal history male terminology was used for centuries. In ancient Rome only the paterfamilias (father of the family) had rights, not women and slaves. Thus Latin legal terms like emptor, mandator and fiduciarius are masculine.

The world changed though. For many years a rule of statutory interpretation determined that male terms included the female. However, it has been argued that this mainly applied to duties and penalties and not always to rights. A Scottish judge ruled that the rule did not apply to university admission. Only men qualified. Women must focus on “the acquisition of a knowledge of household affairs and family duties, as well as to those ornamental parts of education which tend … to social refinement and domestic happiness”. Women benefited indirectly from university education “in making better men” of their fathers, brothers, husbands and sons. 

Ironically, the highest court in South Africa decided in 1926 that a law requiring “natives” to carry passes when on the street after 9pm did not refer to women. The black accused was acquitted. She was not a native.

In an attempt to be gender sensitive, our interim Constitution, drafted in 1993, repeatedly and somewhat irritatingly referred to “he or she” and “his or her”. It was agreed that the final Constitution of 1996 would be drafted in “plain language”, a popular trend at the time. A technical refinement team had to attend to the language of draft clauses from the various committees of the Constitutional Assembly. Together with Professor Christina Murray — and occasionally others — I served on this structure. The Canadian plain language expert, who assisted, proposed a “gender neutral” text.

The use of “he or she” and “his or her” was avoided. Instead of the last-mentioned, the pronoun “their” was used. Section 14 is an example: “Everyone has the right to privacy, which includes the right not to have … their person or home searched.” This was criticised by several legal and linguistic experts: the singular “every person” could not simply change to the plural in the same sentence.

It was thought that, in view of our history, a gender neutral constitution should nevertheless emphasise that women could and should occupy senior positions. Thus, section 86(1), for example, states: “At its first sitting after its election … the National Assembly must elect a woman or a man … to be the president.” Similarly, the president must appoint “a woman or a man” as chief justice; like the national police commissioner as well.

During debates in the Constitutional Assembly an interesting question emerged from a surprising source. The National Party’s veteran parliamentarian, “Oom” Alec van Breda, asked if, according to accepted rules of statutory interpretation, certain people were not excluded from becoming president, chief justice or police chief. When a law states that pets must have licences and defines “pets” as dogs, cats, parrots and hamsters (without wording such as “including” or “any other”), a pet rabbit is excluded and does not require a licence. 

Whether the question came from cynicism about political correctness, or sharp insight and indeed foresight, I do not know. We responded that regardless of sexual orientation (on which discrimination may not be based), every person was legally classified as a woman or a man.

But the world kept on changing. The present debate about pronouns and titles is no longer about sexual orientation. It is about the freedom to choose one’s sexual identity and not to be boxed in by conventionally recognised social and legal categories; and ultimately about equality and human dignity.

An article by Ezra Graham Lintner in the UCLA Women’s Law Journal, titled To Each Their Own, argues for using nonbinary pronouns to break the silence in the legal field, forced onto many individuals. Several members of the LGBTIQ+ community prefer to be referred to as “Mx”, instead of “Ms” or “Mr”. Rather than refer to “he” or “she”, the pronoun “they” is increasingly being used. In some academic circles it is compulsory, even if the person referred to is a man — an ordinary oke — happy to be a “he”.

In at least some African languages, gender-specific pronouns do not exist. Perhaps for that reason highly educated African people sometimes use “he” and “she” in a way first language English speakers regard as incorrect.

Now, what about Oom Alec’s question? Is an individual who refuses to be labelled as a woman or a man constitutionally prohibited from becoming our president, chief justice or police chief? One way around this interpretation might be to argue that the Constitution must be interpreted purposively and that the purpose of the relevant clauses was inclusive rather than exclusive. 

Another could be to rely on the equality clause. Unfair discrimination on “one or more grounds, including” gender, sex, sexual orientation and others is prohibited. Sex characteristics and gender identity and expression could be read into the prohibition of discrimination.

It is, of course, still true — as in 1996 — that every individual is legally registered as a woman or a man. Does this mean that highly qualified candidates must choose between the position and conformity with legislation that fails to recognise their identity? Or should laws, including the Constitution, be amended?

Johann van der Westhuizen is a retired justice of the constitutional court and assisted in the drafting of South Africa’s Constitution