On September 13, 2024, the High Court of South Africa in JJ and Others v Minister of Home Affairs and Another (3626/2024) [2024] ZAFSHC 286 held that section 26(1)(a) – (c) of the Births and Deaths Registration Act 51 of 1992 (“the BDRA”) and Regulation 18(2)(a) of the Regulations on the Registration of Births and Deaths (“the Regulations”) are unconstitutional because they discriminate on the ground of gender and against male persons by failing to provide for the change in the marital status of a man.

Section 26(1) of the BDRA stipulates that no person may adopt or use a surname different from the one recorded in the population register unless they have received authorisation from the Director-General. However, there are specific exceptions to this provision. Women are permitted to adopt their husband’s surname upon marriage or to revert to a surname they previously held (section 26(1)(a)). Married, divorced women, or widows may resume a surname they had used in the past (section 26(1)(b)). Women, regardless of their marital status, can add to their post-marriage surname any surname they have previously used (section 26(1)(c)). Section 26(2) empowers the Director-General to grant permission to any person who requests to assume a different surname from that in the population register, provided they can demonstrate good and sufficient reason for the change. Regulation 18(2)(a) of the Regulations specifies that the reasons provided must be related to a woman’s change in marital status.

The applicants are married couples, women wishing to keep their surnames, and men wishing to adopt them [10]-[16]. They contended that the provisions failed to grant women the right to have their spouses adopt their surname [1]. The applicants argued the provisions reinforce gender norms rooted in a patriarchal society, thus perpetuating gender inequality that discriminates based on sex and gender [21]. They referenced section 9 of the Constitution, which guarantees the equal enjoyment of all rights and freedoms, and prohibits unfair discrimination based on gender or marital status [21]. Citing President of the Republic of South Africa and another v Hugo, they argued that the prohibition of unfair discrimination establishes a society where everyone is recognised with equal dignity and respect [21].

The applicants further contended that the BDRA maintains an outdated patriarchal norm that permits only women to change their surnames as a right [22]. Meanwhile, men are required to seek consent from the Director-General to change their surname, needing to provide justifiable reasons for such a request [22]. They also cited Wile v MEC, Department of Home Affairs, Gauteng, where it was stated that the closed list of reasons for assuming another surname contained in Regulation 18 is ultra vires since it misconceives the meaning and scope of section 26(2) of the Act [23]. They argued that sections 26(2) and Regulation 18 should be declared constitutionally invalid because they would not pass the “equality test” established in Harksen v Lane NO and Others [23]. This test evaluates whether law or action unfairly discriminates against individuals based on attributes or characteristics, and if so, whether such discrimination serves a legitimate purpose and is justifiable.

Further, the Amicus argued that the limitation imposed by these provisions is unjustifiable under the limitation clause [24]. It perpetuates gender inequality by depriving individuals of their identities and autonomy, especially by restricting men from adopting their wives’ surnames, thereby violating gender equality principles and reinforcing harmful stereotypes [24.1]. The limitation fails to acknowledge contemporary societal values, such as gender equality and diverse identity choices, but instead promotes outdated masculine norms [24.2] and [24.4]. It is overly intrusive, requiring state intervention in personal decisions and infringing on individual privacy while lacking any compelling state interest to regulate surname changes. Existing legal processes could be modified to manage these changes without bureaucratic involvement [24.3]. Thus, the limitation does not satisfy the ‘rational connection’ and ‘proportionality’ criteria, making it unjustifiable [24.5].

The High Court upheld that the provisions perpetuated archaic gender roles and constituted unfair discrimination against men, and granted the relief sought by the applicants [26]. This judgment is a significant affirmation of the constitutional principle of equality and advancing a progressive egalitarian vision for South African society that accommodates evolving understandings of gender roles, identity, and familial connections.