On 6 September 2017, the Honourable Mr Justice Binns-Ward of the High Court of South Africa, Western Cape Division, handed down judgment in the case of KOS and others v the Minister of Home Affairs and others^[1]. This case dealt with difficulties which transgendered persons, in marriages that were solemnised in terms of the Marriage Act,^[2] were experiencing in obtaining the recordal by the Department of Home Affairs of their sex / gender change, as provided for under the Alteration of Sex Description and Sex Status Act^[3] (the Alteration Act).

The Alteration Act makes provision for the formal acknowledgement, recordal and legal consequences of a person who underwent surgical and / or medical treatment to alter their sexual characteristics from male to female or vice versa.

In the aforementioned case, the first, third and fifth Applicants were married to the second, fourth and sixth Applicants respectively. These marriages were solemnised in accordance with the Marriage Act^[4] and more specifically before the transition of the first, third and fifth Applicants. All the Applicants are content in their respective marital relationships and currently have no wish or intention to end them.

The seventh Applicant is a non-profit organisation named Gender Dynamix. The seventh Applicant seeks to promote and defend the right of transgender and “gender non-conforming” persons in South Africa and beyond. They have been working for a decade now on various issues concerning the implementation of the Alteration Act. They have surmised that the issues fall within three basic categories, which are:

1. Ignorance by relevant officials of the existence and content of the Alteration Act;
2. The absence of prescribed forms and procedures for the administration thereof; and
3. The requirement by the Department that applicants who were married in terms of the Marriage Act^[5] first obtain a divorce before being allowed to have their altered sex / gender recorded; alternatively the arbitrary deletion or alteration by the Department of the official record of the affected marriages.

The first, third and fifth Applicants applied to the Director-General of the Department of Home Affairs, to have their sex descriptions added onto their respective birth registers. The Applicants considered the fact that the registration of the altered sex status of the transgender parties will result in the public records showing that their marriages have become same-sex marriages to be irrelevant to their marriage status.

The Department of Home Affairs maintained that this is not the situation and that their applications cannot be granted while their marriages remain registered as having been solemnised in terms of the Marriage Act^[6]. This resulted in the applications of the first and third Applicants being refused alternatively that the Department failed to make a decision in respect thereof. However, the fifth Applicant’s application was dealt with differently. The Department did alter the sex description, and then simultaneously deleted the particulars recorded in the population register of the marriage with the sixth Applicant. The sixth Applicant’s surname was changed to her maiden name.

Furthermore, various officials from the Department of Home Affairs informed the first and third Applicants that they will only be successful in their applications if they terminated their marriages solemnised under the Marriage Act^[7] and remarried under the Civil Union Act^[8]. Unfortunately, in the absence of an irretrievable breakdown in their marital relationship, no grounds existed for them to seek an order for the dissolution of their marriages.

The essence of the Respondents’ contentions is that the first to sixth Applicants are the victims of a legislative conundrum. The Alteration Act does not contain any sections prohibiting a person who is married under the Marriage Act^[9] to alter their sex / gender. The Respondents argued that even though it is not prohibited under the Alteration Act, this Act should not be read alone, but in conjunction with the Marriage Act^[10] and the Civil Union Act^[11].

The court found that none of the Acts, alone or read together, prohibits a person in these circumstances to alter their sex / gender. The court mentioned that it appears that the approach taken by the Respondents have been coloured by the persisting influence of the religious and social prejudice against the recognition of same-sex unions which was accommodated by the decision not to  amend the Marriage Act^[12], but to bring the Civil Union Act^[13] alongside it instead.

It was ordered that the second Respondent, the Director General of the Department of Home Affairs, must determine applications of this nature irrespective of the person’s marital status, and in particular, irrespective of whether the applicant’s marriage or civil union (if any) was solemnised under the Marriage Act^[14] or the Civil Union Act^[15].

The second Respondent had to, within 30 days from date of the order, unconditionally and without the derogation from his approval of the fifth Applicant’s application, reinstate on the register the record of the particulars of the solemnisation of the said marriage in terms of the Marriage Act^[16].

^[1] 2298/2017

^[2] 25 of 1961

^[3] 49 of 2003

^[4] 25 of 1961

^[5] 25 of 1961

^[6] 25 of 1961

^[7] 25 of 1961

^[8] 17 of 2006

^[9] 25 of 1961

^[10] 25 of 1961

^[11] 17 of 2006

^[12] 25 of 1961

^[13] 17 of 2006

^[14] 25 of 1961

^[15] 17 of 2006

^[16] 25 of 1961

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice.