Alteration of Sex Description and Sex Status Bill, 2003

Oral Presentation for the

South African Home Affairs Portfolio Committee Hearings

on 9 September 2003

Prepared by the

Cape Town Transsexual/Transgender Support Group

 

Contents

1. This Presentation

2. The Cape Town Transsexual/Transgender Support Group

3. Prevalence of Trans People

4. Transition

4.1 Non-Medical Ways of Transitioning

4.2 Hormones

4.3 Surgery

5. Informed Consent, or Against Pathologisation

6. Sexual Orientation

7. The Bill’s Emphasis on Sex Organs

8. Ways Forward

8.1 Proposal 1: Our Heartfelt Wish for a Humane Bill

8.2 Proposal 2: Significant Amendments

8.3 Proposal 3: Minor Amendments Now, Major Revisions to Follow

9. Conclusion

References

Appendix I: Why Trans Men should not be Required to Undergo Vaginectomy

Appendix II: A Brief Case History of an FTM Member of Our Group

Appendix III: Respect / Etiquette / Support

1. This Presentation

On 3 September 2003 we, the Cape Town Transsexual/Transgender Support Group, submitted a request in which we strongly motivated for a deadline extension for both written and oral submissions on the Alteration of Sex Description and Sex Status Bill for our group and its individual members.

We still stand by that request and this document should therefore be viewed as a provisional oral presentation and not a written submission. In this presentation we try to sketch the complexity of the issues and show why the Bill needs further work and why we need more time to comment adequately on it.

Because of the limited time and resources we had at our disposal, we could not prepare a presentation that would do justice to all the issues involved. Nor could we gather all the needed facts or develop the best arguments and proposals. Most importantly, we did not have time to draw on the legal expertise of international trans lawyers who specialise in legislation dealing with trans matters. We need to resort to international legal assistance in this regard because the required expertise is not available in South Africa.

Because there was no time to send this presentation for legal advice we therefore reserve the right to retract any and all statements made here should we not have understood their full legal implications.

We are currently in contact with a number of leading international trans lawyers who are willing to assist us in preparing a written submission. However, that would require that we be granted the deadline extensions.

In our 3 September request we motivated for a two-months extension. But in the interim we have heard that the 18th International Symposium of the Harry Benjamin International Gender Dysphoria Association is currently taking place. It is the international body that sets standards for the treatment of trans people worldwide. In the three to four months following the Symposium important documents will be released, among others a document dealing with the legal recognition of trans people. Around 350 international medical and other experts in trans issues would be involved in its release. We feel that South Africa’s Bill should be able to draw on those documents and recommendations and therefore request that our Bill not be rushed through Parliament without that input.

Although this presentation is written from the perspective of trans people, amendments proposed to the Bill are formulated so as to be inclusive of intersexed people as well.

 

2. The Cape Town Transsexual/Transgender Support Group

There are no transsexual/transgender organisations in South Africa and it is very likely that Cape Town Transsexual/Transgender Support Group is currently the only support group in the country.

The group has been in existence for just over one year and focuses on providing peer support to transsexual/transgender persons. Because trans people often hide away from the world and do not want their trans status to be known it is difficult to establish contact with them. We currently have about fifteen members. However, over the past three to four months we have been growing at a rate of two new members a month. We foresee that the group will become quite large as word of our existence spreads.

Currently around 50% of our members are male-to-female (MTF) and around 50% female-to-male (FTM). We are at various stages of transition – both pre-operative and post-operative, some on hormones, some not. Trans people are not all the same and individual members vary in what they set as the respective end goals of their medical and/or surgical transition.

Although "transsexual" is the term generally used for us, none of our members feels happy about that term. Most of us just want to be called "men" or "women" – in accordance with what we feel our true sex is. Others prefer terms such as transgender or gender diverse.

 

3. Prevalence of Trans People

A recent study in the Netherlands found that 1 in 11 900 biological males is transsexual (MTF) and 1 in 30 400 biological females is transsexual (FTM). However, the study also said that this was a conservative estimate and that for a number of reasons the prevalence of trans people is probably higher.

Extrapolated to the South African population this would yield a figure of 1890 MTFs and 740 FTMs. However, there are likely to be many more. It would not be surprising if Cape Town alone has that many trans people.

 

4. Transition

Transitioning is a long process that can take many years. The idea of a one-step "sex change" is a myth.

There are many different ways in which a person can transition and we do not all have the same end goals in mind.

Exterior steps of transition could include binding, packing, name and pronoun changes, hormones, and surgery and so on. Trans people have the right to make all, some, or none of these changes, and in any order.

 

4.1 Non-Medical Ways of Transitioning

Non-medical ways of transitioning can include the following:

Some us already live full-time as a member of the sex with which we identify while using only these forms of transitioning.

 

4.2 Hormones

The full effects of hormone usage are only completed after several years. A person who starts on hormones basically undergoes puberty. The age at which one starts using hormones often affects the degree of changes. The younger the person, the more significant changes tend to be.

Hormones significantly assist us in passing as our true sex and in making us feel more comfortable with our bodies. Most of us start living full time as our true sex while merely being on hormones and without having had any surgery.

MTFs treated with estrogens can realistically expect treatment to result in breast growth, redistribution of body fat to approximate a female body habitus, decreased upper body strength, softening of skin, decrease in body hair, slowing or stopping the loss of scalp hair, decreased fertility and testicular size, and less frequent, less firm erections. Many of these changes are reversible, although breast enlargement will not completely reverse after discontinuation of treatment.

FTMs treated with testosterone can expect the following permanent changes: a deepening of the voice, clitoral enlargement, mild breast atrophy, increased facial and body hair and male pattern baldness. Reversible changes include increased upper body strength, weight gain and decreased hip fat.

 

4.3 Surgery

Surgery for MTFs:

For male-to-female patients, augmentation mammoplasty may be performed if the breast enlargement brought about by hormone usage is not sufficient.

Genital surgical procedures may include orchiectomy, penectomy, vaginoplasty, clitoroplasty, and labiaplasty. These procedures require skilled surgery and postoperative care. Techniques include penile skin inversion, pedicled rectosigmoid transplant, or free skin graft to line the neovagina. Sexual sensation is an important objective in vaginoplasty, along with creation of a functional vagina and acceptable cosmesis.

Other surgeries that may be performed to assist feminisation include reduction thyroid chondroplasty, suction-assisted lipoplasty of the waist, rhinoplasty, facial bone reduction, face-lift, blepharoplasty and voice modification surgery.

 

Surgery for FTMs:

For female-to-male patients, a mastectomy procedure is usually the first surgery performed for success in gender presentation as a man; and for some patients it is the only surgery undertaken. When the amount of breast tissue removed requires skin removal, a scar will result.

Genital surgical procedures may include hysterectomy, salpingo-oophorectomy, vaginectomy, metoidioplasty, scrotoplasty, urethroplasty, placement of testicular prostheses, and phalloplasty. Current operative techniques for phalloplasty are varied. The choice of techniques may be restricted by anatomical or surgical considerations. If the objectives of phalloplasty are a phallus of good appearance, standing urination, sexual sensation, and/or coital ability, there may be several separate stages of surgery and frequent technical difficulties which may require additional operations. Even metoidioplasty, which in theory is a one-stage procedure for construction of a microphallus, often requires more than one surgery. The plethora of techniques for penis construction indicates that further technical development is necessary.

Other surgeries that may be performed to assist masculinisation include liposuction to reduce fat in hips, thighs and buttocks.

 

5. Informed Consent, or Against Pathologisation

We regard ourselves as having a medical condition and not as being mentally ill. We therefore reject any diagnosis of gender dysphoria or gender identity disorder (GID). There is no advantage for us in being pathologised as mentally ill. It stigmatises us without helping us to get health care assistance – medical aids do not cover our treatments and state hospitals have also suspended treatment. In the USA demonstrations by trans people take place at conferences of the American Psychiatric Association to demand that GID be removed from the Diagnostic and Statistical Manual of Mental Disorders (DSM) in the same way that homosexuality was removed.

It is a human right to be able to modify one’s body in accordance with one’s identity. It is not up to psychiatrists, psychologists or medical practitioners to act as gatekeepers preventing some of us from transitioning. Their role must be solely supportive and informative.

We are adults and responsible for own decisions. The focus must be on informed consent – a patient must know exactly what the implications are of a decision to transition and undergo particular treatments. In this regard the role of the medical profession is to provide the patient with all the needed information to make informed decisions.

 

6. Sexual Orientation

Trans people can be of any sexual orientation. It is not true that we cannot be gay as the 1995 Law Commission study asserts. Some of us are heterosexual, some gay, some bisexual or even polysexual (recognising that there are more body types than just male and female).

 

7. The Bill’s Emphasis on Sex Organs

We have heard that a transman recently asked a representative of Home Affairs on a Felicia talk show whether he would qualify for an alteration of sex description given that he has a scrotum. Apparently the Home Affairs representative laughed at him and stated that unless the transman had what he (the Home Affairs representative) has down there in his pants, he would never qualify. Apart from the callousness of the remark the Home Affairs representative clearly demonstrated that he had no knowledge whatsoever of what possibilites are open to transmen to ever get what he has in pants, no matter how many surgeries we undergo.

This lack of understanding is also reflected in the current Bill. The biggest problem with the Bill as it stands is its focus on the alteration of sex organs and its assumption that something like a full "sex change" is possible. No trans person could ever get the kind of sex organs that a biological male or female has. A degree of visible similarity is the most that can be achieved.

By using the expression "sex change" the Bill also seems to demand that we undergo every possible surgical procedure before allowing us to change our sex description. This is a human rights violation. It is positively inhumane to require us to undergo surgical alteration of sex organs given the immense risks involved, the number of hospital stays, the immense amount of physical pain, and the frequently unsatisfactory results and debilitating consequences. See in this regard Appendices I and II.

There is no medical rationale for linking legal recognition of a trans person’s new sex to genital reconstructive surgery or any other specific treatment that is not medically appropriate or possible for all transsexual people. For example, for female-to-male transsexuals (FTMs), the most common sex reassignment surgery is chest surgery. In contrast, fewer than 10% of FTMs undergo any reconstructive genital surgery, due to the severe limitations and medical risks associated with this surgery.

Requiring an individual to undergo any particular surgical procedure before his or her birth certificate sex designation can be changed does not conform to current international medical practice for the treatment of trans people. A wide variety of medical treatments exist, and different procedures are suitable for different trans patients, depending on numerous factors. Following internationally recognised standards of care for the treatment of trans people, doctors work closely with their patients to determine which treatments are necessary and appropriate for each individual’s transition to be complete.

Current trends in the law reflect this approach. Increasingly, legal trends favour an individually tailored approach. Internationally, policymakers and judges are moving away from using reconstructive genital surgery as an indicator of sex identity, recognising that many trans people pursue a broad variety of surgical procedures and hormone therapy regimes that are individually tailored for them, given their medical histories, and that do not necessarily include genital reconstruction. As a result, the rights and privileges of trans people are now much less dependent upon a person’s surgical history.

For example, in Boston in the USA the anti-discrimination law passed in October 2002 requires that determinations of sex for trans people be based upon "the gender identity publicly and exclusively expressed or asserted by the person". San Francisco, which has included a prohibition on gender identity discrimination since 1994, is rewriting its guidelines to remove any reference to surgical status as a basis for determining the sex of a trans person. In addition, the new guidelines will consider it harassment to ask a person to reveal their genital or anatomical status to determine their gender.

South Africa is a developing country and it is understandable that the emphasis must be on primary health care for all rather than on expensive treatments for the few. However, this means that trans people have no recourse to sex reassignment treatment in public hospitals – subsidies for this kind of treatment and surgery have been cut and as far as we are aware there are no new intakes of trans patients. Moreover, private medical aids in South Africa refuse to cover our treatments. The costs of medical and surgical treatment are prohibitively expensive for most of us. Requiring of us to undergo treatment we cannot afford is outright discrimination against most of us because we cannot afford it.

The focus of the Bill must instead be on steps we can take that are practically and realistically achievable and that take into account our individual needs.

 

8. Ways Forward

In what follows we put forward three proposals:

The first proposal is the most far-reaching and is expressed in very general terms only – requesting that no conditions whatsoever be imposed on any individual who desires to have their legal sex description changed. We know that it is highly unlikely to be granted in the next decade, but put it forward nonetheless in the belief that we are preparing the ground for a future in which government and society will no longer be so concerned about regulating the sexual identity of individuals.

The second proposal is a set of significant amendments to the Alteration of Sex Description and Sex Status Bill, seeking to steer it away from the undesirable focus on "sex organs" towards an emphasis on the day-to-day social or lived identity of the applicant. This is the proposal behind which we are putting all our weight. It draws on the current UK draft Gender Recognition Bill.

The third proposal is a set of minor amendments that constitutes the bare minimum we would be able to accept as a provisional measure only. It also seeks to steer the current Bill away from its emphasis on "sex organs" and its use of erroneous terminology, but retains an emphasis on sexual characteristics and medical treatment. We offer this proposal on the following conditions only:

  1. That the Bill be passed with these minor amendments before the end of 2003,
  2. That a process to bring about revisions be set in motion directly after its being passed in this form, and
  3. That the revision/redrafting process will involve a working group that includes trans and intersexed people.

All three of the following proposals are phrased in a manner inclusive of both trans and intersexed people.

 

8.1 Proposal 1: Our Heartfelt Wish for a Humane Bill

If we could have exactly what we wished for, if we could ask for a Bill that would have as its primary aim the validation and respect of our identities, a Bill that above all else valued our well-being, safety and sense of who we are, a Bill written in the true spirit of South Africa’s Bill of Rights, a Bill that took seriously our rights not to be discriminated against directly or indirectly on the basis of sex and gender, then we would ask for a Bill that focuses purely on the self-identification of the applicant.

We would ask for a Bill that accepted that each person is the best judge of who she or he is, a Bill that took each of us on our word and nothing else, that did not pathologise us or seek to impose all kinds of external requirements – surgery, medical treatment and doctors’ reports before acknowledging us to be who are. A Bill that would allow a person to have the sex description on her or his birth certificate, ID number, ID documents, passport and driver’s license changed solely on the basis of the person’s statement that she or he wants it changed.

As it is, we sadly realise that the greatest part of society and its institutions still wants to enforce on all human beings a very rigid concept of what it means to be female or male. It wants to deny us our very sense of self on the basis of the external appearance of our bodies, on the basis of what hangs between our legs or what the shape of our chest is. On the basis of how our bodies look it makes us outcasts, stigmatises and sensationalises us. It clings to absolutes that do not exist and feels extremely threatened by those of us who cross those artificially imposed boundaries. It seeks to regulate us, track us and require our bodies to fully fit one of the two tiny boxes it constructed before allowing us the legal and social existence we yearn for.

What gives us hope in the future is the evidence that human society is slowly moving towards a legal space where the number of distinctions based on sex are becoming fewer – we are beginning to acknowledge that men can also be raped, that same-sex marriages deserve equal recognition, that not all women want to or can bear children, that not all men want to or can conceive children, that many people have sex organs that are sterile or not fully functional, that artificial insemination is a reality and that the number of trans, intersexed and other gender diverse people are increasing. In the light of all this why on earth do we still feel it is so very important to scrutinise what goes on between people’s legs? Why do we still have to decide whether a person fit the Bill, so to speak, on the basis of his or her sex organs and reproductive system?

As people who often do not fit the bill in the eyes of society, we do hope and believe with all our being that the day will come, even if only many years into the future, that human beings will cease to judge others by narrow, sexist and stereotypical criteria of what it means to belong to a particular sex. We hope for a future in which each of us will be able to freely live out our identities and develop our bodies in ways that fulfil our greatest potential as human beings.

 

8.2 Proposal 2: Significant Amendments

Because we doubt that our heartfelt plea for the most humane Bill possible will be granted, we propose a compromise that would:

a) Satisfy the desire of government and society to impose conditions on us before we may change our legal sex description.

b) Make it reasonably attainable for us to have our legal sex description changed to reflect our self-identification.

In proposing the following we are drawing in part on the current UK draft Gender Recognition Bill. This Bill was written jointly by the UK government and trans lawyers and organisations.

 

Section 1(1) and 1(2) (a) to (c) to be modified as follows:

1(1) Any person may apply to the Director-General of the National Department of Home Affairs for the alteration of the sex description on her or his birth register on the basis of living as a member of the sex corresponding to the sex description under which she or he seeks to be registered.

1(2) An application contemplated in subsection (1) must –

(a) be accompanied by the birth certificate of the applicant;

(b) a declaration by the applicant that she or he has lived as a member of the sex corresponding to the sex description under which she or he seeks to be registered throughout a period of one year ending with the date of the application; and

(c) a report by a social worker, psychologist or medical practitioner that includes details about how the applicant identifies and lives as a member of the sex referred to in (b).

Motivation for Section 1(1):

In proposing that an application be based on living as a member of the sex corresponding to the sex description under which an applicant seeks to be registered, we are adapting the terminology of the UK draft Gender Recognition Bill to comply with the SA Bill’s terminology.

This condition recognises that what matters in our day-to-day lives is how we present ourselves in interaction with others rather than what is between our legs. In current-day society there are very few situations where you have to take off your clothes in the presence of other people. Trans people learn from early on to avoid those situations if we are pre-operative and also when we are post-operative but feel self-conscious about the results.

Trans people are not the only people who avoid exposing their bodies to the public eye. Many people who feel self-conscious about their bodies because it does not meet the ideal model projected by the media also learn to disguise parts of their bodies and avoid being seen naked or half-dressed.

As with all other people, the only time another person needs to know what goes on under our clothes is when we see a doctor about a medical problem or enters into an intimate relationship. However, in both these cases this is a private matter between us and our doctor or partner.

To make living as a member of the sex with which a person identifies the condition for an application is to give legal validation to the person’s real-life experience. It is about recognising that the identity the person has in her or his dealings with other members of society is crucial to all aspects of the person’s life. If this identity is not legally recognised it constantly exposes the person to a wide range of humiliating, discriminatory and dangerous situations and radically undermines their ability to function with confidence in society.

Most trans people live successfully as the sex with which we identify without having had any surgery by doing some of the following:

Each trans person is different and the number of measures taken to "pass" as a member of the sex with which you identify will differ widely from person to person. It is also important to keep in mind that "passing" is a relative concept and depends very much on stereotypical notions of maleness and femaleness. We must not loose sight of the fact that there are biological men who look like women and biological women who look like men. It would therefore be extremely unjust to demand of all trans people that they pass as the sex with which they identify in a way that meets all the most stereotypical and sexist standards.

Motivation for Section 1(2):

In 1(2)(b) we propose that the period of time in which the applicant be required to live as a member of the sex corresponding to the sex description under which an applicant seeks to be registered be one year. This is shorter than the two years proposed by the UK Gender Recognition Bill, and with good reason.

Many of us who do end up transitioning spend years before we take the first practical step, such as having our name changed. Usually other steps are introduced gradually to accommodate family, friends and colleagues. From the time of starting the transition process to the time of actually living full-time as a member of the sex with which we identify can already take many months or even years. One year of living as the sex with which you identify is long enough to show that you have become established in that identity.

Every additional day that a person has to wait for legal validation of the identity in which he or she lives, place him or her at risk. Not having an ID number, ID document, driver’s license or passport that correspond to our lived identity prevents us from exercising our rights freely. It impacts on our ability to move around freely and without fear, obtain employment, travel abroad, have a medical aid, open bank and other accounts, have our academic qualifications and other documents issued in the correct identity and on many other aspects of our lives.

It is of the utmost importance that we be able to obtain our changed ID documents as fast as possible. From the time of application for new ID documents to the actual receipt of these documents take many months and some people wait up to a year. This additional waiting period puts us further at risk.

Apart from a declaration by the applicant that s/he has lived as a member of the sex corresponding to the sex description under which she or he seeks to be registered, we propose another document as a form of proof:

In 1(2)(c) we propose a report by either a social worker, psychologist or medical practitioner that includes details about how the applicant identifies and lives as a member of the mentioned sex. In this respect we differ from the UK Gender Recognition Bill which requires a diagnosis of "gender dysphoria". We utterly reject having to be diagnosed as mentally ill. We therefore propose instead a report that focuses on details of our lived experience as a member of the sex with which we identify.

 

Section 1(3) to 1(8):

For the sake of clarity and logical consistency we propose that Subsections 1(3) to 1(8) become a new section titled "Refusal of application by the Director-General". As it stands, some confusion might ensue because Subsections (6) to (8) do not explicitly state that they have reference to Subsection (3). If this amendment is implemented, then Section and Subsection numbers (including those referenced in the text) must also be amended.

 

Section 1(3):

Delete "unless such reasons have been made public".

Motivation:

We require absolute confidentiality. Under no circumstances should any details about our application, its refusal or granting be made public. The Bill should actually include a section dealing with non-disclosure of information.

General point: If the Director-General is to have the power to refuse an application then it is only reasonable to expect her/him to become knowledgeable about transition-related issues and the options and limitations trans and intersexed people face.

 

Section 1(6):

Query: What kind of "additional information and proof" does the Bill have in mind?

Comment: It could conceivably refer to documents such as pay slips, bills and account statements made out to the person in the sex corresponding to the sex description under which she or he seeks to be registered. However, our ID numbers often makes it difficult for us to obtain documents in our preferred sex – see motivation under 1(7).

 

Section 1(7) to be modified as follows:

(7) If the application is granted the magistrate must issue an order directing the Director-General to alter the sex description in the birth register of the person named in the order and issue the person with a new ID number and ID document reflecting the altered sex description.

Motivation:

It is not clear what it means "to alter the sex description in the birth register of the person". Currently particular digits in ID numbers are used to indicate a person’s sex. A mere alteration of the sex description would not be any use if it does not also mean the issuing of a new ID number and ID document reflecting the altered sex description.

Because in South Africa ID numbers are used to indicate sex, many institutions use systems that automatically pick this up and use a title and sex corresponding to one’s ID number. Some systems are incapable of changing an individual’s title or sex to something that contradicts the person’s ID number. Some of us have found that we have to resort to repeated phone calls, faxes and even personal appointments to get institutions to change our details. Once the details have been changed it also often happens that the institution’s computer system updates revert to the old details and you have to repeat the whole process, which is extremely humiliating, frustrating, time-consuming and puts us at risk.

This raises another point: It would be preferable if the practice to indicate sex using ID numbers is ceased altogether. The advantages would be two-fold:

(a) There would be no need to alter a person’s ID number if the person’s sex description changes because ID numbers would no longer be linked to sex descriptions. Administration for the State and the individual would be simplified if a person could go through life having a single ID number. Under the current system one would have to retain for legal purposes documentation of the old and new ID numbers of the person.

(b) Trans people do not want records to be kept of their previous sex description. If the sex description is no longer linked to the ID number, then the records of the old sex description can be destroyed without the risk that the continuity of the legal identity of the person will be affected – given that the ID number will still be the same.

ID numbers were previously used to indicate race, but as far as we are aware this practice has fortunately ended. There is therefore no reason why we could not also stop using ID numbers to indicate sex. Having ID numbers indicate sex not only put trans people at risk but also enables various institutions to discriminate against non-trans women (or men as the case may be) on the basis of sex.

 

Section 2(2) – add to the end:

Among others, this entitles the person to an ID number, ID document, driver’s license and passport that reflect the altered sex description.

Motivation:

See motivation under Section 1(7) above.

 

Section 3:

Replace "an amended birth certificate" with "a new birth certificate reflecting the altered sex description".

Motivation:

It is not clear what "amended" means.

 

Section 4:

Query: To what does "sex status" refer in the current title of the Act? Is it different from "sex description"?

Strongly consider changing the title of the Act to "Sex Recognition Act".

Motivation:

The current title may be too specific. An Act of this nature might conceivably undergo revisions that deal with matters specific to the rights and needs of trans and intersexed people and which go beyond the mere procedure involved in altering sex description. For example, it may deal with protection against disclosure and rights in the workplace.

Calling it the Sex Recognition Act would also signal the intent of the Act as being about "recognition" of our real sex – a psychologically important point to us.

The UK Bill is similarly titled the "Gender Recognition Bill".

 

Other concerns:

Although South Africa cannot issue new birth certificates to non-South Africans resident here, the Bill should provide some form of legal recognition of a change in sex identity in their case as well. The UK Gender Recognition Bill does provide such a mechanism for foreign-born people. (The European Court of Human Rights ruled in 2002 that a failure to recognise change of sex would be a breach of the European Convention on Human Rights.)

 

8.3 Proposal 3: Minor Amendments Now, Major Revisions to Follow

We can only support the implementation of the following proposal if the three conditions stipulated at the beginning of Section 8 are granted. Otherwise we will have to stand by our Proposal 2.

Section 1(1) to be modified as follows:

1(1) Any person whose sexual characteristics have been altered by surgical or medical treatment or by evolvement through natural development [delete: resulting in a sex change], or any person who is intersexed may apply to the Director-General of the National Department of Home Affairs for the alteration of the sex description on her or his birth register.

Motivation:

"Sexual characteristics" include both so-called primary sexual characteristics (sex organs) and so-called secondary sexual characteristics (breast growth/atrophy, increased/decreased facial and body hair, female/male fat distribution, softness/hardness of skin, deepness of voice, increased/decreased body strength, etc.)

The expression "sexual characteristics" is also used in the UK draft Gender Recognition Bill.

Taking hormones is the most accessible kind of medical treatment for trans people. It significantly alters a person’s secondary sexual characteristics and is often all that is required to enable a person to live successfully as a member of the sex with s/he identifies.

By changing the Bill’s requirement from alteration of "sex organs" to alteration of "sexual characteristics" trans people who are on hormones but who have not had surgery will be able to apply for an alteration of sex description. In other words, alteration of sexual characteristics would not require surgical alteration of the sex organs.

Hormones do in fact medically alter the sex organs: In FTMs the clitoris enlarges, ovaries are suppressed and menstruation ceases. In MTFs the testicles become smaller and erections become less firm and frequent. A short period (usually a few months) of using hormones renders both FTMs and MTFs sterile for reproductive purposes.

We insist on deleting "resulting in a sex change". The term "sex change" is based on popular misconceptions and places impossible demands on trans people. In technical and medical terms a real "sex change" is not possible and the term is not used. The most that can be achieved by those who do undergo surgical alteration of the sex organs is some visible similarity to the sex organs of biological males or females. Besides, many trans people hate the word "sex change" because we do not feel as if we are undergoing a change of sex; instead we are merely bringing our bodies in line with the sex we already are.

The insertion of "or any person who is intersexed" has already been strongly motivated in the submission by Sally Gross. We have nothing to add in that respect.

 

Section 1(2) to be modified as follows:

1(2) An application contemplated in subsection (1) must –

(a) be accompanied by the birth certificate of the applicant;

(b) in the case of a person whose sexual characteristics have been altered by surgical or medical treatment, be accompanied by a report by a medical practitioner stating the nature and results of any procedures carried out and any treatment applied or prepared; [delete: by the medical practitioners who carried out the procedures and applied the treatment; and]

(c) in the case of a person whose sexual characteristics have been altered by surgical or medical treatment, be accompanied by a report stating the present sexual characteristics of the applicant prepared by a medical practitioner other than one contemplated in paragraph (b) who has medically examined the applicant in order to establish his or her sexual characteristics.

(d) in the case of a person who is intersexed, be accompanied by a report by a medical practitioner corroborating that the applicant is intersexed; and

(e) in the case of a person who is intersexed, be accompanied by a report from a psychologist or social worker corroborating that the applicant has lived as a member of the sex corresponding to the sex description under which she or he seeks to be registered throughout a period of one year ending with the date of the application.

Motivation:

"Sex organs" and "sex appearance" replaced by "sexual characteristics" for the reasons cited in the motivation for Section 1(1) above.

Only one report is needed in (b) and the report need not be by the medical practitioners who actually performed the procedures or applied the treatment. The applicant might not always be able to access the original medical practitioners at the time of applying for an alteration of her/his sex description. One report in (b) and one report in (c) are enough proof.

General comment: It is expensive to get medical treatment and reports from medical practitioners and many of us cannot afford it. It is discrimination against those of us who are financially disadvantaged if only those who can afford medical or surgical treatment are allowed to have their sex description altered. If government requires us to undergo medical treatment such as hormones and obtain medical reports before allowing us to alter our legal sex description, then it should assist us in obtaining these through the public health system.

Subsections (d) and (e) to accommodate intersexed people are similar to the amendments proposed by Sally Gross. However, our amendments differ slightly from hers in formulation. Among others, in our opinion two years is an excessive and unreasonable requirement, hence our proposal of one year.

 

Additional Amendments:

The following list of sections and subsections refers to amendments outlined in Proposal 2 that should be viewed as part of this proposal as well (please see the relevant sections under Proposal 2):

 

9. Conclusion

We thank the members of the Home Affairs Portfolio Committee for having given us the opportunity to present you with our concerns about the Alteration of Sex Description and Sex Status Bill.

South Africa’s Constitution is among the most progressive in the world. We believe that our country could also be among the leading in the world when it comes to the legal acknowledgement of the rights and needs of trans and intersexed people. We therefore plead with you to strongly consider our Proposal 2 as the way forward with this Bill.

 

The Cape Town Transsexual/Transgender Support Group

References

Draft Gender Recognition Bill (UK).

Green, Richard. 1999. "Reflections on ‘Transsexualism and Sex Reassignment’ 1969-1999: Presidential Address, August 1999." The International Journal of Transgenderism.

Gross, Sally. 2003. Submission Concerning the Alteration of Sex Description and Sex Status Bill B37 – 2003.

Harry Benjamin International Gender Dysphoria Association’s Standards of Care for Gender Identity Disorders, Sixth Version, February 2001.

Home Affairs Portfolio Committee. 5 August 2003. Alteration of Sex Description and Sex Status Bill – Briefing by Department.

International Conference on Transgender Law and Employment Policy, Inc. (ICTLEP). 1996 (1993). International Bill of Gender Rights.

ICTLEP & NCLR. 1996. A Joint Statement by the International Conference on Transgender Law and Employment Policy (ICTLEP) and the National Center for Lesbian Rights (NCLR).

South African Law Commission. March 1995. Investigation into the Legal Consequences of Sexual Realignment and Related Matters, Project 52, Report.

Memorandum on the Objects of the Alteration of Sex Description and Sex Status Bill, 2003.

Press for Change. 2003. Draft Recognition Bill – an analysis of how it will affect transsexual people.

Timtum, Micah. Respect/Etiquette/Support.

Whittle, Stephen. 24 September 1997. Why trans men should not be required to undergo vaginectomy. An affidavit prepared as part of challenge to surgical preconditions for legal recognition of a change of gender for trans men.

 

Appendix I

 

Why trans men should not be required to undergo vaginectomy

 

An affidavit prepared as part of challenge to surgical preconditions for legal recognition of a change of gender for trans men.

 

Stephen Whittle Ph.D, M.A, LL.B, B.A, Lecturer, The School of Law, The Manchester Metropolitan University

24 September, 1997

This affidavit by Press For Change vice-president Dr Stephen Whittle was prepared for for a case in the Quebec courts in which a trans man successful challenged a requirement that he undergo the surgical procedure of vaginectomy as a precondition for legal recognition of his change of sex.

However, Quebec was not the only jurisdiction to have adopted such criteria: Liberty's Amicus brief for the Sheffield & Horsham case lists several other countries which require surgery before changing official documentation.  As this affididavit demonstrates, such a requirement is particularly invidious for trans men, for whom such surgery is still a hazardous procedure with a low success rate.

 

To Whom It May Concern

24 September, 1997

I, Stephen Whittle of The School of Law, the Manchester Metropolitan University, Hathersage Rd, Manchester M13 0JA, United Kingdom, am writing with regard to the proposal that Mr Dale Altrows, as a female to male transsexual, should be required to undergo a surgical vaginectomy prior to being afforded legal recognition in his new gender role.

I am a Lecturer in Law, Doctor of Philosophy (in Law) and Vice-President of Press For Change which campaigns for equal rights for transsexual people in the United Kingdom. As Vice-President of Press For Change I sit on the Parliamentary Forum concerned with issues relating to the legal status and rights of transsexual people, chaired by Dr Lynne Jones MP.

The Parliamentary Forum was set up in 1995 with the objectives to address and seek solutions to the problems faced by transsexual people within the United Kingdom because of their dubious legal status. The Forum which has met several times has supported the reading of the Gender Identity (Registration and Civil Status) Bill [1996] which in turn led to a report from the Cabinet Office of Public Service which identified the legal issues of concern.

Further in my capacity as Vice-President of Press For Change, legal officer for the Gender Trust, and co-ordinator of the Female to Male transsexual network I have dealt with many enquiries from transsexual people in relation to their rights, giving advice and taking their case histories, over the last 20 years. My Ph.D research looked into the legal issues and included a comparative study of the approaches taken throughout the world to many of the difficult questions involved in affording transsexual people legal recognition in their new gender role.

I wish to state that I do not think it is appropriate or necessary to require a vaginectomy of those people who have undergone the transformation form female to male. There are several reasons for thinking this:

  1. Current surgical provision as regards the provision of an acceptable phallus are very limited.
  2. FTM's seek phalloplastic surgery which will produce a phallus that:

    1. looks realistic
    2. through which urinary voiding is possible
    3. which is sexually sensate.

    Even "state of the art" surgery can, at best, only ever afford two out of the three results that are desired by female to male transsexuals (FTM's). However currently surgeons in this field promise at best a success rate of 1 in 8, with only 2 of these requirements being met as a general rule e.g. realistic looks and voiding, or sexual sensation and voiding.

  3. Such surgery is extremely expensive - between $US30,000 and $US150,000. The surgical procedures vary in number often requiring 4 to 6 hospital inpatient stays, and in some cases upward of 15 or 16 hospital stays.
  4. The surgical procedures have little guarantee of success, they will take a period of 2 to 3 years, the procedures are debilitating, often suffering catastrophic failure of the phalloplasty site, and for many who commence this long road the social cost is tremendous with them losing their jobs and often their families and social support networks, and a few will suffer severe depressive illnesses as a result of undertaking this process.
  5. As such it is impossible to recommend this route to FTM's. The support networks, and all the many clinicians in the field that I know, which includes many surgeons who perform this surgery, recommend, that a period of peer group counselling be undertaken before any decision on phalloplasty is taken.

    The current recommendations are that with such counselling, most FTM's develop coping mechanisms to deal with their lack of a penis, and their partners whether female or male learn to respect the emotional limitations that FTM's face. As such the FTM can live a full life as a man after hormone replacement therapy, a bilateral mastectomy, oopherectomy and hysterctomy.

    Whether the FTM then uses his full range of genital organs for sexual activity is a matter to be decided between him and his partner in the privacy of the bedroom. Some FTM's have penetrative sex, some do not, (some because of their shame and distaste with their body will not have sexual relationships at all) however most FTM's will discuss their sexual needs in terms of their genitals being male genitals but differently abled genitals, just as a paraplegic might discuss their genitals. Furthermore many FTM's will speak of enjoyable vaginal sexual sensation at orgasm even without penetration occurring. Should FTM's be denied sexual satisfaction simply because they are differently abled men - we would not consider refusing a paraplegic who had no genital sensation the opportunity to use other parts of their body for sexual satisfaction.

  6. Another reason for not demanding vaginectomy of the FTM before legal recognition is that the retention of the vaginal tissues is imperative if surgical procedures improve and phalloplasty becomes more likely an option. The vaginal tissues are often used, in the procedure, to line the urinary "hook up" which will transfer urine to the site at the head of the new penis.

If a vaginectomy is performed in advance of this procedure, then artificial means such as silicon tubing have to be used for such hook-ups. These are notorious for their failure rate, and one of the main problems currently incurred by FTM's who undergo phalloplasty is catastrophic failure of the site where such a tube is connected to the former urethral channel.

As such, it is positively cruel and inhumane to demand that FTM's should undergo phalloplasty which will leave most of them incontinent, unable to work, in great pain, severely scarred and socially isolated.

If phalloplasty is not to be demanded - and it would be a human rights abuse to do so, then to demand a vaginectomy removes sexual satisfaction for the present, hope for the future for little reason - after a few months on hormone replacement therapy the FTM will be sterile for all procreative purposes, so the judicial and social fear of "the man who has a baby" is extremely far fetched.

To refuse legal recognition of what, after a short time, becomes a social reality for the FTM i.e. their social position as male not only can cause psychological harm, leaving the individual constantly doubting their social role and acceptance, but also leaves them open to abuse, prejudice and harassment in the workplace.

Stephen Whittle, BA Hons, LLB, MA, Ph.D
Senior Lecturer in Law

 

 

Appendix II

A Brief Case History of an FTM Member of Our Group

William (not his real name) is a female-to-male (FTM) in his late twenties. He was born with a female body, but already lived full time as male before having started any medical treatment, hormone use or surgery.

The medical aspect of his transition commenced in 1998 and consisted of the following:

1998, March: Started using hormones (testosterone).

1999, August: Chest surgery and hysterectomy.

2002, November: Phalloplasty (construction of phallus).

About the phalloplasty that was performed in November 2002, he wrote:

"I underwent a twelve to fourteen hour operation and due to the length of the operation there were some complications. Both of my legs were swollen and very sore. The left leg they had to operate on because they discovered a blood clot in my shin [which developed due to the length of the operation]. After that I was confined to bed for about three weeks. Within the first week I had a haemorrhage and had to get 4 containers of blood. My wounds had to be cleaned in surgery. I was in constant pain all the time. After my release from hospital I had to attend it for the dressings of my wounds for two months. I could not walk properly until recently. I do have some bad scarring [along the length of the forearm where the tissue and a nerve were removed to form the phallus and along the left leg] but all in all the operation I went in for was a success."

He still needs to undergo surgery to construct a scrotum from his labia. This surgery should take place towards the end of 2003.

At a later stage he would also like surgical revisions to his nipples because they have been left too large during the chest surgery in 1999.

All the above medical treatment and surgeries are prohibitively expensive. William would not have been able to afford them if he had not been fortunate enough to enter the public health system at a time when it still offered treatment to trans people. Public hospitals that used to perform these procedures no longer take in new trans patients but only finish procedures for patients who entered the system previously.

If all goes well William will have completed his full transition by the end of 2003. It will have been six years of medical and surgical treatment. And it will be more than six years of having lived as a man. But it will also be more than six years during which he would not have been legally recognised as a man under the current Alteration of Sex Description and Sex Status Bill.

 

 

Appendix III

Respect / Etiquette / Support

The following guidelines were adapted from: Micah Timtum (2000) Respect/Etiquette/Support. It is written from the perspective of a transman – someone transitioning from female to male (however, with some amendments made many of the issues would apply equally to transwomen):


OK, here are some basics. Of course, every trans person is different, and may be more or less concerned about these issues. This list is based mostly on my own experience as a trannyboy in his mid-20s who doesn't usually "pass". Also, some things which are totally inappropriate towards strangers and acquaintances might be fine in the context of a trusting relationship.