Depathologising Gender Identity at the United Nations: A Call to South Africa

by | Apr 24, 2023

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About Mutondi Mulaudzi

Mutondi Mulaudzi is a PhD Candidate at the University of Witwatersrand and a judicial fellow at the International Court of Justice. Her research is a comparative study on the right to legal gender recognition in South Africa.

On 29 March 2023, a cross-regional group of countries led by Argentina, called for United Nations Member States to implement laws and policies based on self-determined gender identity. This reform is representative of calls to depathologise gender recognition by moving away from medico-legal criteria for recognition that compels people to undertake medical interventions such as gender reassignment surgery.

International and regional law: Developing a right to self-determined gender identity

The notion of self-determined gender identity has received widespread global support over the past two decades. Under frameworks for the recognition of legal gender identity, a few States have shifted from medico-legal criteria for recognition to those based on an individual’s self-determined gender identity. This is in line with the groundbreaking Yogyakarta Principles (YPs), a set of soft international law principles that have had a significant impact on legal gender recognition reform. Under the YPs, the recognition of gender identity is based on an individual’s internal and individual experience of gender. Importantly, it emphasises their personal sense of their body, which may or may not involve modification of bodily appearance.

The right to self-determined gender identity has also been considered by regional human rights courts. In a 2017 Advisory Opinion, the Inter-American Court recognised the right to a self-determined gender identity under the American Convention on Human Rights, emphasising that recognition should not be subject to medical certification or requirements.

Global trends

The right to legal gender identity is recognised in over 67 jurisdictions around the world. The ambit and extent of recognition differs from one jurisdiction to another.  In particular, the requirements for recognition vary considerably: the majority of States with gender recognition laws maintain the medico-legal approach. The current call to action instead highlights the barriers and human rights violations faced by transgender persons, which include access to healthcare, education, housing and participation in public life.

The cross-regional group led by Argentina comprises states as diverse as India, Greece, Ireland, Brazil and Uruguay. It also includes countries such as Malta and Australia which have some of the most progressive gender recognition laws. The Malta approach to gender recognition fully recognises the right to self-determined gender identity. Under Malta’s Gender Identity, Gender Expression and Sex Characteristics Act, individuals wishing to amend their legal gender identity are only required to make a declaration in front of a notary. They are not required to undertake any medical procedures, nor are they required to submit proof of any psychological or physical diagnosis such as gender dysphoria. In 2017, the Maltese government also introduced the possibility of an “X-marker” on ID cards and passports, thus signifying a shift away binary models (male-female) of gender classification.

The South African context

The cross-regional alliance provides an opportunity to reflect on the South African framework. South Africa’s Alteration of Sex Description and Sex Status Act of 2003 remains an example of pathologised gender identity. The Act requires medical diagnosis or certification and requires the alteration of sexual characteristics. These pathologised requirements are further compounded by the reported difficulties in accessing healthcare services and misinterpretations of the Act which have resulted in officials requesting proof of surgery, although this is not a statutory requirement.

Depathologising gender identity is firmly on the United Nations’ human rights agenda. The South African legislature needs to respond to the call made by the cross-regional group in order to better protect the rights of transgender South Africans. In doing so, this would set the foundation for improving access to healthcare services, education, housing and other socio-economic rights that remain unevenly distributed between cisgender and transgender populations.

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