A recent judgment ensures that transgender people who transitioned after they got married don’t have to get divorced to have their gender reflected accurately in their identity documents (ID).

The matter was brought before the Western Cape High Court by three couples who were married under the Marriage Act before one of the spouses began their transition.

“It was emotionally very, very difficult being told to get a divorce — even though my wife and I didn’t want one,” says Adelle Hertz, one of the applicants in the case and who underwent gender-affirming surgery.

Hertz, who chose not to use her real name, married her partner in 1988 under the Marriage Act.
She disclosed her true gender to her wife, who she says “is very supportive”.

Despite having her forenames successfully changed and obtaining an ID that reflects her female appearance, her identity document continued to list her gender as male. Her 2016 application to have this corrected was declined by a department official, who told her that the department’s computers “simply [would] not allow an amendment to [her] gender as [she] was married in terms of the Marriage Act’.”

The couple were then advised to obtain a divorce and remarry under the Civil Union Act. But a divorce would only be granted if it could be proven that there had been an irretrievable breakdown of their relationship.

“But that was not the case,” says Hertz. “Which means that, in order for us to get a divorce, we would have to lie to the court. We would have had to commit perjury.”

Transgender people who have gender markers on their IDs that contradict their physical appearance are often faced with difficulties in their day-to-day lives when asked to produce such documentation.

Delivering the judgment, the court noted that “the many and various difficulties that could present for a person whose gender characteristics differ from those recorded on his or her identity card are not hard to imagine” .

The Alteration of Sex Description and Sex Status Act of 2003 says a transgender person can apply to the department’s director general to have their gender marker changed and then be provided with the altered birth certificate.

But there have been problems with its implementation. According to the trans and gender rights organisation, Gender Dynamix, the main problems were that authorities were ignorant of the existence and content of the Act and that there were no prescribed forms and procedures for the administration of the Act. The requirement by the department that applicants who were married under the Marriage Act first have to obtain a divorce was another obstacle.

The judgment said “the absence of a uniform approach by the department to these matters is striking”.

It said one of the applicants “found herself in embarrassing situations in which she was called upon to explain why her appearance did not correspond with that depicted on her official identity cards.  Some people proved sympathetic to her predicament; from others it elicited reactions of suspicion or hostility.  This caused her increasingly to withdraw from dealing with the outside world and leave the management of her affairs to her wife.”

Hertz says: “You have to come out to strangers, which can be traumatic. It is humiliating. But there is also the fear factor, you know, that you’d be embarrassed … or worse.”

Mandy Mudarikwa is with the Legal Resources Centre, the applicants’ attorneys. She says the Alteration Act is “crucial in realising the right to identity and equality of transgender persons”. The judgment will ensure it is implemented constitutionally and in a way “that is respectful of the lived realities of transgender persons in South Africa”.

She adds: “This judgment has brought relief for these three couples who are in loving marriages but had been forced to choose between altering their sex description or ending their marriages.”

Says Hertz: “Although there are only three couples, we represent many more. So it was a privilege for me to be an applicant, because I know that so many couples will be helped by this.”

One such couple is Deena Johnson and her wife, who were married in April 2003.

Johnson, who chose not to use her real name and is “still in the process of coming out”, says: “Thank God someone took this to court before it was an issue for me. I am still deciding whether I want to have my gender marker changed. I would prefer us to remove gender markers from identification entirely, but we’re very far from that being a legal reality.

“But this [judgment] makes it much simpler for me if I do choose to change my gender legally. I’m just happy that someone got there first and paved the way. It really makes it a great deal easier.”

Carl Collison is the Other Foundation’s Rainbow Fellow at the Mail & Guardian