Chapter 5
Step 1: Identify the problem
-Can Tommy change his name after the sexual realignment and what would be his
legal position after surgery?
Step 2: State the law
-Transsexualism is a rare congenital defect/anomaly whereby a person of male or
female gender is born with the reproduction system and genitalia of the opposite sex.
-Before 1976, sexual realignment operations were legal and patients could legally
change their official documentation to reflect their new sex.
-After a ‘sex change operation’, a sexually realigned person could apply to have his
sex description altered on the birth certificate and the population register.
-In the case of W v W 1976 (2) SA 308 (W): Court refused to accept the description of
his/her altered birth certificate as the person’s true sex. The court used the biological
chromosomal basis for deciding what the sex of the person was in the eyes of the law.
Therefore, the court held that changing the sex organs from a penis to a vagina could
not result in a change of sex.
-The same approach was adopted in Simms v Simms 1981 (4) SA 186 (D).
According to the courts it was not possible for people to change
their sex regardless;
(a) They have been sexually realigned; or
(b) Their sex description was changed on the birth certificate.
-These judgments have been criticised for being the decisive test for a person’s legal
sex.
-Critics argue that the test should include a psychological component: What sex does
the person feel he or she belongs to?
-As a result of these decisions it became impossible for people who had sex change
operations to legally change their documents to reflect this change in their sex.
-It has since been alleged that this was aimed at covering up the government’s role
and knowledge of The Aversion Project which involved a series of forced sex change
operations performed on members of the army during the 1970’s and 1980’s as a
means to cure them of homosexuality and lesbianism.
-Legal situation created enormous difficulties for people who had sexual realignment
surgery.
-The operations were legal but the people concerned were unable to change their legal
sex or the description of their sex on their official documents, such as birth certificates
and ID books.
-Accused of trying to commit fraud when they tried to open bank accounts or seek
employment.
-Human Rights Commission: prevailing rules were unconstitutional as they infringed
rights to privacy and dignity.
-Alteration of Sex Description and Sex Status Act 49 of 2003 was passed in 2003.
-S2: transsexuals who have undergone sex realignment surgery may apply to have
their sex description changed on their birth certificate and other formal documents.
-The insertion of s27A amended the Births & Deaths Registration Act.
-S27A: Provides for the alteration of a person’s sex description on his/her birth
certificate.
-The Alteration of Sex Description and Sex Status Act changed the rule set out in W v
W.
-S3(2): A person whose sex description has been altered, is deemed for all purposes
to be a person of the sex description so altered from the date of the recording of such
alteration.
Step 3: Application
-Tommy can change his name after the surgery and his legal position will change in
the eyes of the law according to s3(2) of Sex Description and Sex Status Act and s27A
of Amended the Births & Deaths Registration Act.
