SUBMISSION CONCERNING THE ALTERATION OF SEX DESCRIPTION AND SEX STATUS BILL B37
By Sally Gross
The fact that section 1 (1) of the Bill applies not only to those “whose
sex organs have been altered by surgical or medical treatment”,
but also to “those whose sex organs have been altered …
by evolvement through natural development resulting in a sex change”
suggests that it is intended to afford relief to people who are intersexed
as well as to transsexuals.
A transsexual is by definition someone whose physical sex at birth is
unambiguous, but who identifies psychologically with the opposite sex
and seeks or obtains surgery to confirm a change of gender-role.
An intersexed person is someone whose physical sexual differentiation
at and from birth is atypical. Most intersexed people are born with
ambiguous sex organs, so that classification of sex at birth as male
or female is in fact arbitrary. Such best guesses at the optimal gender
of rearing is not infrequently proved wrong over time.
As it stands, the Bill covers only one exceedingly rare form of intersexuality,
unlikely to be found in South Africa, in which the sex organs at the
time of birth appear to be female but become more male in type with
the onset of puberty. It affords no relief to those whose sex organs
are ambiguous and who are unwilling to submit to radical and indeed
potentially life-threatening genital surgery.
I have not been able to obtain access to local estimates of the incidence
of intersexuality in our country. Extrapolation of estimates for the
United States suggest that between 45 000 and 90 000 people are affected
to a significant degree. It has been claimed that South Africa has the
highest prevalence of intersexuality in the world. This suggests that
my extrapolation might well understate the prevalence of intersexuality
in South Africa.
The Bill as it stands implies that what will be needed for the registration
of a sex description is evidence that the appearance of the sex organs
is typical of the sex description in question, be it “male”
a) One effect of this, should it pass into law as it stands, will be
to make genital surgery a prior condition for the registration of a
sex description in the case of people born with ambiguous sex organs.
Those who have ambiguous sex organs and are not willing to submit to
such surgery are liable to find themselves in a legal limbo, unable
to exercise many civil rights which are generally taken for granted.
b) A linked effect of the passage of this Bill as it stands will be
to provide support in law for the prevalent practice of imposing genital
surgery on infants and children born with ambiguous sex organs even
in the majority of cases where surgery is not needed to preserve life
or health. The propriety of this practice, in scientific, ethical and
legal terms, has been called radically into question outside South Africa
over the past six years, and it would be inappropriate to pass into
law a measure which reinforces an increasingly discredited practice.
The unintended and unforeseen consequences noted above can be avoided
by amending the Bill by stating explicitly in section 1 (1) that the
measure applies to any person who is intersexed. It should be required
of intersexed people applying for alteration of their sex description
that they provide medical reports corroborating that they are intersexed.
I would suggest that what should be required of intersexed people is
not a description of their present sex appearance (presumably what section
1 (2) (c) has in mind is a description of the sex organs showing that
these conform to the sex description sought), but rather evidence that
the applicant has been established stably and satisfactorily up to the
present, for an unbroken period of at least two years, in the gender-role
corresponding to the sex description which is sought.
1. The primary purpose of The Alteration of Sex Description and
Sex Status Bill is to enable transsexuals, people born unambiguously
male or unambiguously female in physical terms, but who identify psychologically
with the opposite sex to the extent that they resort to surgery to sustain
life in their gender-role of choice, to register their post-surgical
sex description and to enjoy all the rights in law of a person born
of the physical sex with which they identify. The drafting and tabling
in Parliament of a measure designed to achieve this is long overdue
and greatly to be welcomed. It is in
the context of whole-hearted support for the end which this measure
is intended to achieve that I make this submission. It is intended to
point out certain consequences, which I believe to be completely unintended
and indeed unforeseen, which derive from the criterion put forward in
section 1 (1) of the Bill for the alteration of sex descriptions and
sex status, and which are at odds with the intended effect of the Bill.
I seek to argue that the criterion can easily be redrafted in a way
which will avoid the aforesaid consequences and which will strengthen
the efficacy of the measure.
In terms of section 1. (1) of the Bill, its terms apply to “any
person whose sex organs have been altered by surgical or medical treatment
… resulting in a sex change”, a formulation which is presumably
intended to refer primarily to transsexuals. Significantly, it also
applies to those “whose sex organs have been altered … by
evolvement through natural development resulting in a sex change”.
This is presumably intended to ensure that the provisions of the Bill
also afford protection to
intersexed people at large, whose physical sex is ambiguous and objectively
indeterminate from birth. As it stands, this description picks out just
a tiny proportion at best of those who are intersexed. It is also likely
seriously to prejudice the rights of intersexed people who have not
submitted to or suffered potentially life-threatening genital surgery.
These consequences of the Bill as it stands are surely
completely unintended and directly contrary to the intention of the
drafters and champions of the Bill. Since the main concern of this submission
is to ensure that the Bill affords intersexed people at large adequate
protection and to prevent an unintended legislative erosion of their
rights, it would be well briefly to explain what intersexuality is and
to sketch the major forms which it takes. I will explain briefly why
the issue is a major concern for me, and will tease out the unintended
consequences of the Bill in more detail. The submission will then address
the remedies and changes which are needed to realise its purpose without
these untoward consequences.
There is considerable ignorance about intersexuality, and crucial distinctions
between transsexuality and intersexuality are often not grasped adequately.
The issues which undergird this submission are complex and emotionally
fraught, requiring both adequate understanding and considerable sensitivity.
The issues which I raise have also had a direct impact on my life in
the past, and I have had personal experience in the not-too-distant
past of considerable erosion of rights in law as a direct result of
the fact that I am known to be intersexed. The far-reaching loss of
rights which I experienced in the past, and which took nearly a year
and a half to remedy, could be repeated in my life and in the lives
of many other intersexed South Africans in the present in consequence
of the unintended effects of the Bill as it stands in the event that
it is passed into law without amendment. I therefore request that I
be enabled to make oral representations to the Portfolio Committee during
the forthcoming hearings.
4. Intersexed people, to whom the term “hermaphrodites”
also refers, are people whose physical sexual differentiation at birth
is not typical. In many cases, the external sex organs are ambiguous.
There are only two checkboxes, “male” and “female”,
in most Western-based legal frameworks, only one of which can be ticked
off however ambiguous the sexual anatomy. Although a sex description
as male or as female is generally given to intersexed infants at or
some time after birth, the experience of intersexed activists shows
that the gender assignation is often arbitrary and is at best a judicious
guess at the optimal gender of rearing which may be proven wrong in
Many distinct syndromes are covered by the umbrella-term “intersexuality”
and yield sexual anatomy which is ambiguous in some way or other. In
what follows, I shall enumerate some of the major intersex syndromes.
5.1. One common intersex syndrome is called adrenal hyperplasia, in
which over-active adrenal glands produce substances similar to male
hormones which cause foetuses which would otherwise have developed along
female lines to develop along male lines to a lesser or greater degree
instead. The physical appearance of people affected particularly strongly
by this syndrome, including that of the sex organs, is masculine and
such people tend to experience themselves as more male than female.
For the most part, however, this syndrome yields ambiguous genitalia.
5.2. Another major syndrome is called Androgen Insensitivity Syndrome
(AIS). In this syndrome, a foetus has a genetic structure which usually
results in development along male lines under the influence of male
hormones. A gene is passed on, however, which results in the cells of
the body being unable to “read” male hormones (androgen)
in a way which causes the body to develop along male lines: the cells
of the body are insensitive to androgen to a greater or lesser degree.
As a consequence, the body develops along female lines in direct proportion
to the degree of the
androgen insensitivity. Classification at birth tends to be as female
in such cases, and those affected by complete or a relatively high degree
of androgen insensitivity invariably experience themselves as female.
The more common scenario of partial degrees of the insensitivity to
male hormones results in external sexual organs which are ambiguous
to a greater or lesser degree, depending on the extent of the insensitivity.
5.3. In Klinefelter Syndrome, the chromosomal pattern is XXY rather
than XX pure and simple, which typically (but not invariably) yields
a female bodily type and XY pure and simple, which typically (but again,
not invariably) yields a male bodily type. Those with this syndrome
tend to be classified as male at birth, but are prone to develop bodily
types which are ambiguous. The development of large breasts at puberty
is fairly common, and gender-identity is often ambiguous.
5.4. In a significant number of intersexed people, the cause of the
ambiguous sexual anatomy is quite simply not known.
5.5. As a result of the impact in South Africa of Jeffrey Eugenides’
recent novel Middlesex, members of the South African reading public
are likely to identify intersexuality with a particularly rare form
of it. The novel concerns a person born with female body type, classified
as female and reared as female, whose sexual organs become masculine
in type with the onset of puberty. The syndrome which provides the subject
of the novel, and which is described accurately therein, is called 5
Alpha Reductase Deficiency. In common with many intersex syndromes,
it is transmitted genetically and is, as far as I know, restricted to
specific pockets of population. One such pocket is found in the Dominican
Republic, and another one is apparently found in Gaza. I have met only
one person affected by this syndrome, in England, and think it likely
that no-one in South Africa is affected by it.
I have been unable to obtain sight of local estimates of the number
of South Africans who are intersexed, and will therefore extrapolate
from an estimate for the United States by Professor Anne Fausto-Sterling.
Estimates of the total number of people whose bodies differ from standard
male or female range from one in four to one in a hundred. Applying
this to the South African population yields a figure of between 450
000 and 1 125 000. In most of these cases, the degree of atypicality
will be small, and will not have had a major impact on lives. Between
one in 500 and one in a thousand is affected to a significant degree.
Projected onto the South African population, this suggests that between
45 000 and 90 000 South Africans are intersexed to a significant degree.
I understand that a South African geneticist has done a ten year study
of the prevalence of intersexuality in South Africa and claims that
South Africa has the highest prevalence of intersexuality in the world.
In the event that this is so, my extrapolations from American figures
may understate the number of intersexed people in our country.
As should be clear from the brief sketches of the major intersex syndromes
given above, intersexuality is most often manifested not in alteration
of the sex organs “by evolvement through natural development resulting
in a sex change”, but rather in ambiguity of the sex organs from
birth onwards. The only form of intersexuality which does, arguably,
involve alteration of the sex organs “by evolvement through natural
development resulting in a sex change” is the exceedingly rare
Reductase Deficiency Syndrome, which is unlikely to be found in South
In the mid-1950s it became standard first-world practice to surgically
to alter the ambiguous sex organs of intersexed infants and children,
and to do so as early as possible. This was in spite of the fact that
ambiguous genitalia rarely involve any risk to health or to life. Since
it is technically far easier surgically to give the appearance of female
external sex organs than male sex organs, a high proportion of intersexed
infants and children, as well as toddlers born with unambiguously male
sex organs whose male sex organs have suffered irreparable damage, have
been assigned as female by means of surgery. The practice of imposing
such surgery was based largely on the theories about the development
of sexual identity of John Money in Baltimore, USA. The main empirical
support for this theory was John Money’s report on the outcome
of a case often called the “John/Joan case”. In 1997 a paper
was published showing that Money had misrepresented the long-term outcome
of this textbook case. The actual outcome was the direct opposite of
what John Money had claimed it to be.
These revelations called the practice of imposing essentially cosmetic
surgery on the sex-organs of intersexed infants and children radically
into question. They also gave credence to the experience of a number
of intersexed adults who, having suffered the imposition of surgery
on their sex-organs as infants and children, told personal stories of
long-term damage, both physical and psychological, in consequence of
the surgery, and campaigned for the imposition of any such surgery on
infants and children to be stopped except in cases where it was truly
necessary for the reservation of health or life.
In contrast to the United States, Britain and other metropolitan countries,
where the practice of imposing surgery on the sex organs of intersexed
infants and children is being questioned increasingly from within the
medical profession itself, the practice seems to continue unabated in
Insofar as it effects people who are intersexed, the sharp focus of
The Alteration of Sex Description and Sex Status Bill on the appearance
of the sex organs is worrying because it threatens to provide support
in law for the perpetuation of a largely discredited surgical practice.
the issue is of personal concern to me
10. I am intersexed. Having been born a few years before the practice
of imposing surgery on the sex organs became standard practice, I was
spared surgery and my sex organs remain unmodified. It has been determined
that, had standard protocol for the classification of the sex of infants
born with ambiguous sex organs been applied to me at birth, I would
have been classified and reared as female.
In the event, I was classified and reared as male. Much later in life,
when living in Britain, evidence that I am intersexed emerged, I was
advised to live as female, and have done so unproblematically for the
past ten years. In the course of that period I have learnt a great deal
about intersexuality, have maintained close contact with intersexed
activists outside South Africa and have become intensely aware of the
issues, have written about the subject. Since being able to return to
South Africa in 1999, I have sought to raise awareness about intersexuality
in South Africa and to campaign for the rights of people who are intersexed.
Difficulties arose in the South African context. A routine application
to renew my passport in 1996 was complicated by medical evidence that
I am intersexed and that my sex organs are ambiguous. My identity document
was withdrawn and, after being in limbo for many months, I was informed
that in view of the medical evidence the Department of Home Affairs
was unable to issue me with official documents under any description.
Since the matter hinged on medical evidence, it was referred to the
Department of Health for adjudication. It was put to me informally that
a way forward could be found were I to submit to surgery on my sex organs,
whether this involved the surgical creation of male-type or female-type
external sex organs. I made it clear at the time that I was not prepared
to submit to any such surgery, which I viewed as mutilation. I also
pointed out that the surgery involved is potentially life-threatening,
and that it was unacceptable for it to be made a condition of having
an identity that
one submit to life-threatening and essentially cosmetic surgery.
The issue was resolved ad hoc, after a battle which lasted for fifteen
months, after Minister Kader Asmal wrote to the Department of Home Affairs
on my behalf and after I threatened to test the handling of my situation
against the Bill of Rights in law. Luckily, I was resident in England
throughout this period, and did not have to cope with the far-reaching
consequences of withdrawal of identity in South Africa itself. The Department
of Health instructed the Department of Home Affairs to emend the
register of births to state that I was born female, and to issue me
with documents. The decision was evidently that the classification of
my sex at birth was to be treated as erroneous by reason of the fact
that medical evidence showed it to have been contrary to standard protocol,
and that the sex description in the register of birth was to be brought
into conformity with the standard protocol.
Some time ago, I saw a television programme on which the Director: Communication
of the Department of Home Affairs spoke about the likely passage of
The Alteration of Sex Description and Sex Status Bill into law. At that
stage, I was familiar only with the version of the Bill supported by
the Law Commission in its report on the matter in 1995. It was clear
from what the Director:
Communication said that the intention was that a request to alter a
sex description would be granted only if it was proven that the applicant
had a complete and adequate set of the appropriate sex organs, whether
surgically or medically constructed or natural. He also implied that
sex descriptions issued in the past would be likely to be reviewed retroactively
in the light of this requirement, and that identity documents issued
and status accorded in the past could well be withdrawn if the bearer
documents was not proven to have all the sex organs of the necessary
kind and adequacy. It was clear from this that those like me, who have
sex organs which are ambiguous from birth, would be likely to find themselves
in an impossible limbo without identities in law.
of the emphasis on sex organs for the intersexed
14. The criterion for the registration of a sex description in the Bill
as it stands is the appearance of the sex organs, and the rights and
relief which it affords are extended only to those whose sex organs
are altered so as to result in a sex change. While there is an attempt
to accommodate intersexuality by including those in whom the requisite
alteration occurs “by evolvement through natural development”,
this in fact covers only those effected by an extremely rare intersex
condition which is unlikely to be found in South Africa.
Most people who are intersexed are born with ambiguous sex organs. As
a condition for the registration of sex description, the Bill as it
stands requires that there have been an alteration of the sex organs
which results in a sex change. This suggests that what will be required
for registration of a sex description, should the Bill be passed into
law as it stands, is that the new appearance of the sex organs be unambiguously
consonant with the sex description in question. The criterion makes
absolutely no provision for sex organs which are ambiguous from birth.
As has been noted, the classification of the sex of infants born with
ambiguous genitals is a judicious guess at optimal gender of rearing
at best, and can easily prove to be the wrong one. The experience of
a significant number of intersexed adults suggests that such “best
guesses” are not infrequently wrong, despite the fact that in
many such cases surgery on sex organs was imposed in infancy or childhood
to reinforce the gender of rearing. The criterion at the heart of the
Bill as it stands
threatens to make it impossible for an intersexed person whose sex organs
remain ambiguous to have an identity in law, without submitting to potentially
life-threatening surgery, in the gender-role which has proven to be
least uncomfortable in practice.
People who are transsexual are, by definition, born with sex organs
which are unambiguously of one sex and actively seek surgery to alter
these. There is no unwelcome hardship imposed, given this, in making
the appearance of the sex organs of transsexuals after the surgery which
is so avidly sought by them into the criterion for the alteration of
their sex descriptions. Intersexed people, by contrast, tend to be born
with sex organs of ambiguous appearance. Those who are spared the trauma
of non-consensual surgery on their sex organs do not necessarily seek
or welcome such surgery. Ambiguous sex organs rarely pose a danger to
the health or life of their owners, and they are not generally on public
display. In contrast to the case of transsexuality, the requirement
of the Bill that the appearance of sex organs be unambiguous is a major
impediment for many people who are intersexed.
Since the Bill as it stands links sex description narrowly with the
appearance of the sex organs, it will provide support in law for the
practice of imposing genital surgery on those born with ambiguous sex
organs even when this is not required for the preservation of health
or life. As I have noted, this practice has been shown to be without
solid theoretical and empirical support, and is increasingly being questioned
within the medical profession abroad. There is also constitutional case-law,
form of a decision of the Colombian Constitutional Court, which calls
it into question on the grounds that it violates the rights of those
on whom such non-consensual surgery is imposed.
The practical effect of passage of the Bill as it stands for those like
me could well be withdrawal of identity documents with all that this
implies. Without an identity document one cannot vote and is thus disenfranchised.
One cannot obtain a driver’s license or obtain social benefits
which would otherwise be due to one. An identity number is required
as proof of identity for a host of other practical purposes: access
to medical treatment, being on systems through which one is paid for
the work one
does, operating a bank account and more. It would surely be an injustice
directly or indirectly to make so much which is fundamental to survival
contingent upon submission to genital surgery.
20. The consequences of the Bill noted above are surely unintended and
unforeseen. They can be remedied by weakening the requirement for alteration
of sex description if evidence is presented that someone is intersexed.
In the case of intersexuality in general, I would suggest that the measure
interrogate the proven ability of the applicant to live successfully
in the desired gender-role. What could be required (as is the case with
pre-operative transsexuals in the first world) is evidence that a real-life
test has been passed satisfactorily: expert testimony that the individual
concerned has in fact lived stably and satisfactorily in the desired
gender-role up to the present for an unbroken period of at least two
A set of amendments which might achieve this follow.
“(1) Any person whose sex organs have been altered by surgical
or medical treatment or by evolvement through natural development resulting
in a sex change, or any person who is intersexed, may apply to the Director-General
“(2) (c) in every case in which sex organs have been altered resulting
in a sex change, be accompanied by a report …”
“(2) (d) in the case of a person who is intersexed, be accompanied
by medical reports corroborating that the applicant is intersexed;
“(2) (e) in the case of a person who is intersexed, be accompanied
by reports from a qualified psychologist or social worker corroborating
that the applicant is living and has lived stably and satisfactorily,
for an unbroken period of at least two years, in the gender-role corresponding
to the sex description under which he or she seeks to be registered.”
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