concerning the Judicial Matters Amendment Bill B - 2004
By Sally Gross
1. Section 15 of the Judicial Matters Amendment Bill, B __ 2004, seeks
to amend the Promotion of Equality and Prevention of Unfair Discrimination
Act, 2000 (PEPUDA), so as to extend the application of the Act expressly
to include intersexed persons. There being considerable ignorance about
Intersex, most South Africans and many legislators are unlikely to have
prior knowledge as to why the it is desirable and necessary to ensure
that intersexed persons are explicit beneficiaries of the provisions
of PEPUDA. The first and primary purpose of this submission is to explain
why this amendment is desirable and necessary. Secondly, there being
a definition of “intersexed” in an existing Act, the submission
will propose a slight amendment of the definition of “intersex”
in order to ensure the compatibility of the definitions.
2. Intersexed people, to whom the term “hermaphrodites”
also refers, are people whose physical sexual differentiation at birth
is not typical. This may be the case at the level of the chromosomal
pattern of the person, it may be evident in the internal structures
of reproduction, in the make-up of the sex-glands, in the balance of
sex-hormones, or in the structure of the external sex-organs. In many
but not all 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
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 or otherwise atypical in
some way or other. In what follows, I shall enumerate some of the major
3.1. 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.
3.2. 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.
3.3. 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.
3.4. There are many more identifiable syndromes. It is important to
note, however, that in a significant number of intersexed people the
cause of the ambiguous or otherwise atypical sexual anatomy is quite
simply not known.
4. 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.
4.1. 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.
4.2. 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
4.3. In a recent message I received from Professor Milton Diamond, a
US-based academic who is one of the world’s leading experts on
intersex, he was at pains to remind me that the prevalence of intersex
in South Africa is among the highest in the known world. I understand
that a South African geneticist has done a ten year study of the prevalence
of intersexuality in South Africa which supports this conclusion. My
extrapolations from US figures may well understate the number of intersexed
people in our country.
the Amendment is to be Supported
5. I am intersexed, and know from personal experience that prejudice
against those known to be intersexed can run unexpectedly high. Difficulties
which I have experienced include refusal to issue official identifying
documents because of medical evidence that I am intersexed; problems
in connection with the obtaining of membership in a medical aid because
I am intersexed; anonymous death-threats and letters to my public-service
employers seeking to secure my dismissal specifically
because I am intersexed. My response has been to challenge and fight
discrimination, and I have done so successfully. I fear, however, that
there are many intersexed people who lack the knowledge, contacts, means
and energy to challenge far-reaching stigmatisation, prejudice and discrimination.
The amendment of PEPUDA to provide explicit protection in law against
discrimination on the grounds of intersex addresses this issue.
The most important reason for the amendment to PEPUDA, however, is that
it will close a major loophole in South African law as it stands which
allows almost limitless discrimination in theory, provided that it is
on the sole ground of intersexuality.
6.1. The terms “sex” and “gender”, as used in
the Equality Clause of the Bill of Rights and in PEPUDA, is not defined
currently and therefore rests upon standard lexical definitions. Standard
lexical definitions define the terms dichotomously when applied to human
beings, recognising only male and female and incorporating no recognition
of intermediate or non- standard sexual differentiation. Intersex is
therefore excluded implicitly from the scope of these terms in the lexical
sense on which their use in law is based.
6.2. There is a piece of case-law, Wood v CG Studios, which brings out
the implications of this. The case in question was an American one.
6.2.1. A Ms Woods was fired in Pennsylvania when her employers learned
that she was intersexed. Ms Woods challenged the dismissal, arguing
that her employers had violated a Pennsylvania statute similar to our
Equality Clause affording protection against dismissal on grounds of
sex or gender, as well as on a number of other grounds. The court found
against Ms Woods, arguing that the terms “sex” and “gender”
in the statute, resting as they did on lexical definitions, afforded
protection against dismissal of a person because that person was a man
or because that person was a woman. The logic of the argument of the
court was that the statute did not prohibit the dismissal of someone
by reason of the fact that the person in question was intersexed.
6.2.2.In 1996, a report was prepared by the South African law Commission
in or around 1996 at the request of the Minister of Justice, in which
what was to become The Alteration of Sex Description Bill was first
considered formally. The report focused primarily on transsexuality,
but also touched on intersex. Commenting on the Equality Clause, the
authors of the report noted that it afforded no protection either to
those who were transsexual or to the intersexed. It is clear that the
reasoning of the authors of the report is similar to that of the court
Wood v CG Studios case.
6.3. As matters stand in South Africa, intersex does not fall within
the scope of the term “sex” by reason of standard lexical
6.3.1.Intersex is therefore not a listed ground in the context of the
Equality Clause and PEPUDA, in which discrimination is deemed to be
unfair until proven to be fair. It is an analogical ground at best,
in which the burden of proof is reversed. Discrimination is deemed to
be fair until and unless proven to be unfair by the party suffering
the discrimination. Thus, it is currently incumbent upon anyone intersexed
suffering discrimination by sole reason of being intersexed to prove
that the discrimination is unfair.
6.4. At this stage, another consequence of the lexical definitions needs
to be considered.
6.4.1.The terms “sex” and “gender”, as applied
to human beings, form part of a linked lexical group which includes
person in the sense of natural person and human being. The dichotomous
definition of “sex”, in terms of which any human being is
either determinately and unequivocally male or determinately and unequivocally
female affects the lexical senses of these other terms. This being the
case, it is possible to argue that someone whose sex is neither determinately
and unequivocally male or determinately and unequivocally female does
not satisfy the at least
one criterion of what it is to be a natural person of a human being
6.4.2.Given the need for locus standi in South African law in order
to challenge discrimination formally or to be represented in such a
legal challenge against discrimination, a possible form of discrimination
on the sole ground of intersexuality is to argue that an intersexed
person lacks the locus standi necessary to challenge discrimination.
6.4.3.This move is potentially self-vindicating. It discriminates against
intersexed people on the sole grounds of their being intersexed. Given
that intersex is not one of the listed grounds at present, this form
of discrimination is to be deemed fair, the burden of proof that it
is unfair resting with the intersexed person or that person’s
legal representatives. The effect of the discrimination, however, is
to render it impossible for the intersexed person or that person’s
legal representatives to challenge the fairness of that discrimination
or indeed of any other form of discrimination provided that it is on
the sole ground of intersexuality. A loophole is
thus available which makes it theoretically possible to deny any or
all rights to a person on the sole ground that the person in question
is intersexed. This would clearly be a gross injustice, and the possibility
of any such move must be blocked legislatively in the interests of justice.
6.5. The proposed amendment to PEPUDA blocks any such move by the statutory
stipulation that intersex forms part of the meaning of the term “sex”
in PEPUDA and, by interpretation, in the Equality Clause itself. It
achieves a great deal simply and elegantly, in a way which engages with
the linguistic intuitions of most people. Asked whether non-standard
sexual differentiation (that is to say intersexuality) is or is not
part of the meaning of the term “sex”, anyone possessed
of reason will surely say that it is indeed part of the meaning of the
7. In section 15 of Judicial Matters Amendment Bill, “intersex”
is defined as follows: “'intersex' means an atypical congenital
physical sexual differentiation”.
7.1. It should be noted that there is an existing definition relating
to intersex in a South African statute. The definition in question is
the sole definition of its kind in South African law. It is important
that the definition in PEPUDA be consistent with the existing definition
7.2. The definition in question is to be found in section 1 of the Alteration
of Sex Description and Sex Status Act, No. 49 of 2003. It reads: ‘”intersexed”,
with reference to a person, means a person whose congenital sexual differentiation
is atypical, to whatever degree’.
7.3. The qualification “to whatever degree” is evidently
meant to pre-empt questions in court as to whether a given person’s
sexual differentiation is atypical enough to count as intersexed. In
the context of PEPUDA, the message which needs to be given is surely
that any negative discrimination on the grounds of atypical sexual differentiation
is unjust and unacceptable, whatever the degree of atypicality. The
force of incorporation of the definition into PEPUDA would therefore
be enhanced by inclusion of the qualification “to whatever degree”,
while also maximising the consistency of the definitions relating to
intersex in South African law.
7.4. In the proposed definition, the word “an” is redundant
and should therefore be removed. It has probably been inserted because
the word “atypical” (one word), which follows it, could
easily be taken to be “a typical” (two words), which means
quite the opposite. This can be remedied by substituting “congenital
physical sexual differentiation which is atypical”, along the
lines of the definition in Act 49 of 2003.
Amendment of the Proposed Definition in the Interests of Consistency
8. I therefore propose that the definition for inclusion in section
1 of PEPUDA read:
‘“intersex” means congenital physical sexual differentiation
which is atypical, to whatever degree’.
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