Abongile Qwenye father and Nthabeleng Tsoanyane, mother and their baby Thateho, who was born intersex back in 2019. The Delft mother welcomes government’s move to propose legislation that would recognise the registration of intersex children at birth to spare future mothers the burden of assigning gender. Photographer Ayanda Ndamane/African News Agency(ANA)
Abongile Qwenye father and Nthabeleng Tsoanyane, mother and their baby Thateho, who was born intersex back in 2019. The Delft mother welcomes government’s move to propose legislation that would recognise the registration of intersex children at birth to spare future mothers the burden of assigning gender. Photographer Ayanda Ndamane/African News Agency(ANA)

Department of Home Affairs seeks to amend identity laws to include a third gender

By Tshego Lepule Time of article published Jan 10, 2021

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A move by the government to try and amend the country’s identity laws to include a third gender has been welcomed by those who have been discriminated against by outdated legislation.

This comes after the Department of Home Affairs published a draft Official Identity Management Policy (OIMP) that seeks to update and amend the country’s identity laws after 20 years.

The proposals range from amending outdated legislation and strengthening controls to guard against identity theft as well as recognising other sex/gender categories.

Abongile Qwenye father and Nthabeleng Tsoanyane, mother and their baby Thateho, who was born intersex back in 2019. The Delft mother welcomes government’s move to propose legislation that would recognise the registration of intersex children at birth to spare future mothers the burden of assigning gender. Photographer Ayanda Ndamane/African News Agency(ANA)

Currently, both the Identification and Births and Deaths Registration Act do not cater for children who are born intersex.

“Such children are assigned either a male or female sex status at birth. Some social groups are discriminated against in the current identity management system. This is because the identity number that we use is not gender neutral. The identity number recognises and accommodates only two categories, namely, male and female,” read the document.

“The ID system does not differentiate between the distinct concepts of sex and gender. In fact, the Identification Act refers to gender and not sex.”

To remedy this the draft policy proposes:

*The population register must make a provision that enables the establishment of a category that is neither male nor female.

*The sex category must cater for transgender that will enable updates of sex information in the population register.

*Issuing a random unique identity number that is not linked to or founded on a person’s sex, date of birth, place of birth or any other marker.

*That the new legislation and National Identity System must enable the registration of births for intersex children.

For Nthabeleng Tsoanyane, 36, whose baby was born with ambiguous genitalia in 2019, having to choose her child’s gender to gain a birth certificate when doctors were not even sure was challenging.

“When Thateho was born it was clear that she was intersex because she presented with both organs but I was told she was a boy because she had what appeared to be a penis so when I went to home affairs I registered her as a boy,” she said.

“But after the doctors ran tests and scans it was found that she had a uterus and had XX chromosomes so to me that said she was female. The small penis she has is not developing and there are no external testicles.

“It was a confusing time for all of us when faced with decisions about how to raise her, things that would determine how she viewed herself later in life. But right now we are sort of in the middle, while I raise her as a female I try to buy her gender neutral clothes for her, her name is also neither a male or female name. How she identifies should be something she decides once old enough to do so.

“I would like it very much if the government were to introduce this third gender to accommodate people like my child because for the next few years we will always have to explain why she looks or is dressed in a certain way when her ID says something else. It would also help other future mothers who would find themselves in my position having to make impossible decisions.”

Siya Hlongwa, director of Be True 2 Me an organisation advocating for the transgender community, said they welcome steps taken by government to address issues of discrimination.

Hlongwa, who is a transgender woman, said the adoption of the policy recommendations would service to promote inclusivity.

“The primary concern is the lack of accommodation in the current protocols that define legal documentation of the gender diverse community in South Africa. The lack of accommodation is manifest in the lack of appropriate gender marker indicators, that are supportive to transgender, gender fluid as well as agender persons,” she said.

“The ambition of the community is to see a system that is designed to make it easier for them to live as their preferred gender or identifier without appearing to transgress the law or being subject to discrimination. Formal legal recognition of gender diversity opens the door to inclusivity and acceptance for all residents of our country.

“Currently, the lack of inclusive gender indicators makes the gender diverse community subject to systemic exclusion and scrutiny. In the work environment, many are forced to declare and present a gender they no longer identify with. Menial tasks like grocery shopping or boarding a plane can be a challenge for gender diverse persons as they can present in different ways which can lead to suspicion of irregular or criminal activity unnecessarily.”

Hlongwa said the formalisation of gender recognition will facilitate the reforms needed to support gender diversity.

“The process of gender marker change forces the transgender person to get the support of a social worker or psychologist, and a general doctor or endocrinologist. What the community needs is a system that empowers the individual to make their own decisions and apply for a gender marker change without having to disclose sensitive medical information that is not mandatory for the process,” she added.

You can make submissions to the draft policy until February, 28.

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