In September 2025, the Constitutional Court of South Africa confirmed the Bloemfontein High Court’s declaration of constitutional invalidity in Jordaan v Minister of Home Affairs. The decision challenged an archaic patriarchal tradition embedded in South Africa’s laws: that a wife may take her husband’s surname, but a husband may not take his wife’s. This decision does not alter or erase the cultural, religious, and spiritual identity and meaning attached to surnames. Rather, it removes gendered limitations in the law and gives everyone the freedom to choose their surname, while also recognising that a husband taking his wife’s surname is not inherently contrary to African culture. Indeed, in many African cultures, women retained their birth names after marriage, and children often took their mother’s clan name [para 23].

Under section 26 of the Births and Deaths Registration Act 51 of 1992 (BDRA), the Director-General of Home Affairs’ permission is required for an individual to assume a surname different from the one recorded in the population register. However, there are exceptions for women, allowing them, among other things, to take a husband’s surname, resume a previously used surname, or add a former surname to the one adopted after marriage. Regulation 18 of the Regulations on the Registration of Births and Deaths (Regulations), passed under the BDRA, also specifies that the reasons for surname change provided must be related to a woman’s change in marital status.

In effect, this meant that women could take their husband’s surnames without special authorisation, while men could not take their wives’ surnames on the same terms. The framework also failed to offer equivalent choices to spouses in same-sex marriages, whose rights were recognised in Fourie, despite the Civil Union Act 17 of 2006 adopting a gender-neutral language of “persons”, “partners” and “spouses” [para 8].

The applicants argued that the BDRA and regulations perpetuated patriarchal gender norms and violated the right to equality in section 9 of the South African Constitution [para 14].

In line with transformative constitutionalism, the Constitutional Court placed the impugned rules in their historical context. The custom of a wife taking her husband’s surname was shaped by colonialism, religion and patriarchal norms, and entered South African common law through Roman-Dutch law [paras 21–29]. Older legal traditions treated a married woman as subject to her husband’s authority. Although those regimes have been formally abolished, their legacies persist in the assumptions underlying seemingly innocuous laws.

The Court did not suggest that a woman who takes her husband’s surname is submitting herself to patriarchy. The constitutional problem is not the choice per se, but a framework that privileges one choice and blocks its reverse. A surname can connect a person to family, culture, history, and identity. The state should not assign one spouse’s name greater legal value because of gender.

The Court first sought to determine whether there was differentiation in the BDRA and, if so, whether the regulations served a legitimate purpose. The state argued that the rules helped ensure a new surname was connected to an existing family name. But that aim did not explain why a man could not take his wife’s surname: it, too, would be an existing family name. Accordingly, the distinction served no legitimate purpose and violated section 9(1) of the Constitution [paras 34–40].

The Court also found the rule to constitute unfair discrimination. Gender is a listed ground under section 9(3), so discrimination on that basis is presumed unfair unless justified [paras 41–42]. The rules harmed men by denying them the choice to take their wives’ names, and harmed women by preventing their names from becoming the family name when their husbands wished to adopt them. They reinforced the expectation that a wife’s identity should adapt to her husband’s [paras 45–50].

Finally, the Court also linked surname choice to dignity: deciding whether to keep one’s name, take a partner’s, or adopt a shared name can be deeply personal. Denying that choice affects a person’s ability to shape their identity and family life [para 51].

The infringements could not be justified under the general limitations clause under section 36 of the Constitution. The restriction served no sufficiently important goal while seriously impairing equality and dignity [paras 55–59]. International law, including the International Covenant on Civil and Political Rights, also supports spouses’ equal participation in choosing a family name [paras 64–70].

While the use of a surname alone cannot dismantle patriarchy, the state should not reproduce patriarchy through the rules that register families. By affirming everyone’s equal freedom to choose their family name, the Court recognises that family identity belongs to the people who form the family, not to inherited legal assumptions about gender. This decision should not be seen as an erasure of cultural, religious, and spiritual identity and meaning attached to surnames. The Constitutional Court removed gendered limitations in the law, giving everyone the freedom to choose their surname, and recognising that a man taking a woman’s surname after marriage is not inherently contrary to African culture. In many African cultures, women retained their birth names after marriage, and children often took their mother’s clan name.