A Third Gender in South Africa: Does the legal non-recognition of a third gender violate non-binary transgender person's Constitutional rights to dignity and equality?

This dissertation will attempt to answer question whether, in terms of the right to dignity in s10 and the prohibition of unfair discrimination in s9 of the South African Constitution, the State must recognise in law a third gender for transgender individuals who do not identify as either male or fe...

Full description

Bibliographic Details
Main Author: Sloth-Nielsen, Rachel
Other Authors: de Vos, Pierre
Format: Dissertation
Language:English
Published: Faculty of Law 2020
Subjects:
Online Access:http://hdl.handle.net/11427/32350
id ndltd-netd.ac.za-oai-union.ndltd.org-uct-oai-localhost-11427-32350
record_format oai_dc
spelling ndltd-netd.ac.za-oai-union.ndltd.org-uct-oai-localhost-11427-323502020-11-01T17:21:18Z A Third Gender in South Africa: Does the legal non-recognition of a third gender violate non-binary transgender person's Constitutional rights to dignity and equality? Sloth-Nielsen, Rachel de Vos, Pierre transgender non-binary gender identity equality dignity This dissertation will attempt to answer question whether, in terms of the right to dignity in s10 and the prohibition of unfair discrimination in s9 of the South African Constitution, the State must recognise in law a third gender for transgender individuals who do not identify as either male or female. It does so, first, by asking whether the failure by the state to provide for the legal recognition of a third gender violates transgender person's right to dignity. Second, the enquiry proceeds to discuss whether s9(3) of the Constitution (which prohibits unfair discrimination on any ground, including on the listed grounds of sex, gender and sexual orientation) requires the state to recognise a third gender. After discussing the lived experiences of transgender persons in South Africa, the thesis reviews the terminology and concepts relevant to this area of study, in order to lay the foundation for the subsequent examination of relevant case law, the Constitutional Court's approach to dignity, and the analysis of the application of s(9)(3). I submit that transgender persons fall within the Constitutional Court's definition of a vulnerable group in that they have suffered past patterns of disadvantage, they constitute a minority in South Africa and are subject to stereotyping and bias. Despite the Constitutional Courts erroneous pronouncement that transsexualism falls under the umbrella of sexual orientation, it is argued, rather, that since the expression of their gender identity by gender nonconforming persons shares many of the characteristics of the specified grounds listed in s9(3), unfair discrimination can be found on a ground analogous to those grounds listed in the Constitution. The failure to allow for recognition of a third gender is thus under-inclusive. It cannot be justified under the limitations analysis. Further, if objections were to be raised by the state that recognition is not feasible or affordable and is, hence, justified, I conclude that because there are ways to accommodate individuals who do not identify as binary which are not unduly taxing on the State, this argument would fail. 2020-10-30T10:33:54Z 2020-10-30T10:33:54Z 2020 2020-10-30T10:17:49Z Master Thesis Masters LLM http://hdl.handle.net/11427/32350 eng application/pdf Faculty of Law Department of Public Law
collection NDLTD
language English
format Dissertation
sources NDLTD
topic transgender
non-binary
gender identity
equality
dignity
spellingShingle transgender
non-binary
gender identity
equality
dignity
Sloth-Nielsen, Rachel
A Third Gender in South Africa: Does the legal non-recognition of a third gender violate non-binary transgender person's Constitutional rights to dignity and equality?
description This dissertation will attempt to answer question whether, in terms of the right to dignity in s10 and the prohibition of unfair discrimination in s9 of the South African Constitution, the State must recognise in law a third gender for transgender individuals who do not identify as either male or female. It does so, first, by asking whether the failure by the state to provide for the legal recognition of a third gender violates transgender person's right to dignity. Second, the enquiry proceeds to discuss whether s9(3) of the Constitution (which prohibits unfair discrimination on any ground, including on the listed grounds of sex, gender and sexual orientation) requires the state to recognise a third gender. After discussing the lived experiences of transgender persons in South Africa, the thesis reviews the terminology and concepts relevant to this area of study, in order to lay the foundation for the subsequent examination of relevant case law, the Constitutional Court's approach to dignity, and the analysis of the application of s(9)(3). I submit that transgender persons fall within the Constitutional Court's definition of a vulnerable group in that they have suffered past patterns of disadvantage, they constitute a minority in South Africa and are subject to stereotyping and bias. Despite the Constitutional Courts erroneous pronouncement that transsexualism falls under the umbrella of sexual orientation, it is argued, rather, that since the expression of their gender identity by gender nonconforming persons shares many of the characteristics of the specified grounds listed in s9(3), unfair discrimination can be found on a ground analogous to those grounds listed in the Constitution. The failure to allow for recognition of a third gender is thus under-inclusive. It cannot be justified under the limitations analysis. Further, if objections were to be raised by the state that recognition is not feasible or affordable and is, hence, justified, I conclude that because there are ways to accommodate individuals who do not identify as binary which are not unduly taxing on the State, this argument would fail.
author2 de Vos, Pierre
author_facet de Vos, Pierre
Sloth-Nielsen, Rachel
author Sloth-Nielsen, Rachel
author_sort Sloth-Nielsen, Rachel
title A Third Gender in South Africa: Does the legal non-recognition of a third gender violate non-binary transgender person's Constitutional rights to dignity and equality?
title_short A Third Gender in South Africa: Does the legal non-recognition of a third gender violate non-binary transgender person's Constitutional rights to dignity and equality?
title_full A Third Gender in South Africa: Does the legal non-recognition of a third gender violate non-binary transgender person's Constitutional rights to dignity and equality?
title_fullStr A Third Gender in South Africa: Does the legal non-recognition of a third gender violate non-binary transgender person's Constitutional rights to dignity and equality?
title_full_unstemmed A Third Gender in South Africa: Does the legal non-recognition of a third gender violate non-binary transgender person's Constitutional rights to dignity and equality?
title_sort third gender in south africa: does the legal non-recognition of a third gender violate non-binary transgender person's constitutional rights to dignity and equality?
publisher Faculty of Law
publishDate 2020
url http://hdl.handle.net/11427/32350
work_keys_str_mv AT slothnielsenrachel athirdgenderinsouthafricadoesthelegalnonrecognitionofathirdgenderviolatenonbinarytransgenderpersonsconstitutionalrightstodignityandequality
AT slothnielsenrachel thirdgenderinsouthafricadoesthelegalnonrecognitionofathirdgenderviolatenonbinarytransgenderpersonsconstitutionalrightstodignityandequality
_version_ 1719354296653316096