SUBMISSION CONCERNING THE ALTERATION OF SEX DESCRIPTION AND SEX STATUS BILL B37 – 2003

By Sally Gross

EXECUTIVE SUMMARY

1) The fact that section 1 (1) of the Bill applies not only to those “whose sex organs have been altered by surgical or medical treatment”, but also to “those whose sex organs have been altered … by evolvement through natural development resulting in a sex change” suggests that it is intended to afford relief to people who are intersexed as well as to transsexuals.

2) A transsexual is by definition someone whose physical sex at birth is unambiguous, but who identifies psychologically with the opposite sex and seeks or obtains surgery to confirm a change of gender-role.

3) An intersexed person is someone whose physical sexual differentiation at and from birth is atypical. Most intersexed people are born with ambiguous sex organs, so that classification of sex at birth as male or female is in fact arbitrary. Such best guesses at the optimal gender of rearing is not infrequently proved wrong over time.

4) As it stands, the Bill covers only one exceedingly rare form of intersexuality, unlikely to be found in South Africa, in which the sex organs at the time of birth appear to be female but become more male in type with the onset of puberty. It affords no relief to those whose sex organs are ambiguous and who are unwilling to submit to radical and indeed potentially life-threatening genital surgery.

5) I have not been able to obtain access to local estimates of the incidence of intersexuality in our country. Extrapolation of estimates for the United States suggest that between 45 000 and 90 000 people are affected to a significant degree. It has been claimed that South Africa has the highest prevalence of intersexuality in the world. This suggests that my extrapolation might well understate the prevalence of intersexuality in South Africa.

6) The Bill as it stands implies that what will be needed for the registration of a sex description is evidence that the appearance of the sex organs is typical of the sex description in question, be it “male” or “female”.
a) One effect of this, should it pass into law as it stands, will be to make genital surgery a prior condition for the registration of a sex description in the case of people born with ambiguous sex organs. Those who have ambiguous sex organs and are not willing to submit to such surgery are liable to find themselves in a legal limbo, unable to exercise many civil rights which are generally taken for granted.
b) A linked effect of the passage of this Bill as it stands will be to provide support in law for the prevalent practice of imposing genital surgery on infants and children born with ambiguous sex organs even in the majority of cases where surgery is not needed to preserve life or health. The propriety of this practice, in scientific, ethical and legal terms, has been called radically into question outside South Africa over the past six years, and it would be inappropriate to pass into law a measure which reinforces an increasingly discredited practice.

7) The unintended and unforeseen consequences noted above can be avoided by amending the Bill by stating explicitly in section 1 (1) that the measure applies to any person who is intersexed. It should be required of intersexed people applying for alteration of their sex description that they provide medical reports corroborating that they are intersexed. I would suggest that what should be required of intersexed people is not a description of their present sex appearance (presumably what section 1 (2) (c) has in mind is a description of the sex organs showing that these conform to the sex description sought), but rather evidence that the applicant has been established stably and satisfactorily up to the present, for an unbroken period of at least two years, in the gender-role corresponding to the sex description which is sought.

Introduction
1. The primary purpose of The Alteration of Sex Description and Sex Status Bill is to enable transsexuals, people born unambiguously male or unambiguously female in physical terms, but who identify psychologically with the opposite sex to the extent that they resort to surgery to sustain life in their gender-role of choice, to register their post-surgical sex description and to enjoy all the rights in law of a person born of the physical sex with which they identify. The drafting and tabling in Parliament of a measure designed to achieve this is long overdue and greatly to be welcomed. It is in
the context of whole-hearted support for the end which this measure is intended to achieve that I make this submission. It is intended to point out certain consequences, which I believe to be completely unintended and indeed unforeseen, which derive from the criterion put forward in section 1 (1) of the Bill for the alteration of sex descriptions and sex status, and which are at odds with the intended effect of the Bill. I seek to argue that the criterion can easily be redrafted in a way which will avoid the aforesaid consequences and which will strengthen the efficacy of the measure.

2. In terms of section 1. (1) of the Bill, its terms apply to “any person whose sex organs have been altered by surgical or medical treatment … resulting in a sex change”, a formulation which is presumably intended to refer primarily to transsexuals. Significantly, it also applies to those “whose sex organs have been altered … by evolvement through natural development resulting in a sex change”. This is presumably intended to ensure that the provisions of the Bill also afford protection to
intersexed people at large, whose physical sex is ambiguous and objectively indeterminate from birth. As it stands, this description picks out just a tiny proportion at best of those who are intersexed. It is also likely seriously to prejudice the rights of intersexed people who have not submitted to or suffered potentially life-threatening genital surgery. These consequences of the Bill as it stands are surely
completely unintended and directly contrary to the intention of the drafters and champions of the Bill. Since the main concern of this submission is to ensure that the Bill affords intersexed people at large adequate protection and to prevent an unintended legislative erosion of their rights, it would be well briefly to explain what intersexuality is and to sketch the major forms which it takes. I will explain briefly why the issue is a major concern for me, and will tease out the unintended consequences of the Bill in more detail. The submission will then address the remedies and changes which are needed to realise its purpose without these untoward consequences.

3. There is considerable ignorance about intersexuality, and crucial distinctions between transsexuality and intersexuality are often not grasped adequately. The issues which undergird this submission are complex and emotionally fraught, requiring both adequate understanding and considerable sensitivity.
The issues which I raise have also had a direct impact on my life in the past, and I have had personal experience in the not-too-distant past of considerable erosion of rights in law as a direct result of the fact that I am known to be intersexed. The far-reaching loss of rights which I experienced in the past, and which took nearly a year and a half to remedy, could be repeated in my life and in the lives of many other intersexed South Africans in the present in consequence of the unintended effects of the Bill as it stands in the event that it is passed into law without amendment. I therefore request that I be enabled to make oral representations to the Portfolio Committee during the forthcoming hearings.

Intersexuality Explained
4. Intersexed people, to whom the term “hermaphrodites” also refers, are people whose physical sexual differentiation at birth is not typical. In many cases, the external sex organs are ambiguous. There are only two checkboxes, “male” and “female”, in most Western-based legal frameworks, only one of which can be ticked off however ambiguous the sexual anatomy. Although a sex description as male or as female is generally given to intersexed infants at or some time after birth, the experience of intersexed activists shows that the gender assignation is often arbitrary and is at best a judicious guess at the optimal gender of rearing which may be proven wrong in time.

5. Many distinct syndromes are covered by the umbrella-term “intersexuality” and yield sexual anatomy which is ambiguous in some way or other. In what follows, I shall enumerate some of the major intersex syndromes.
5.1. One common intersex syndrome is called adrenal hyperplasia, in which over-active adrenal glands produce substances similar to male hormones which cause foetuses which would otherwise have developed along female lines to develop along male lines to a lesser or greater degree instead. The physical appearance of people affected particularly strongly by this syndrome, including that of the sex organs, is masculine and such people tend to experience themselves as more male than female. For the most part, however, this syndrome yields ambiguous genitalia.
5.2. Another major syndrome is called Androgen Insensitivity Syndrome (AIS). In this syndrome, a foetus has a genetic structure which usually results in development along male lines under the influence of male hormones. A gene is passed on, however, which results in the cells of the body being unable to “read” male hormones (androgen) in a way which causes the body to develop along male lines: the cells of the body are insensitive to androgen to a greater or lesser degree. As a consequence, the body develops along female lines in direct proportion to the degree of the
androgen insensitivity. Classification at birth tends to be as female in such cases, and those affected by complete or a relatively high degree of androgen insensitivity invariably experience themselves as female. The more common scenario of partial degrees of the insensitivity to male hormones results in external sexual organs which are ambiguous to a greater or lesser degree, depending on the extent of the insensitivity.
5.3. In Klinefelter Syndrome, the chromosomal pattern is XXY rather than XX pure and simple, which typically (but not invariably) yields a female bodily type and XY pure and simple, which typically (but again, not invariably) yields a male bodily type. Those with this syndrome tend to be classified as male at birth, but are prone to develop bodily types which are ambiguous. The development of large breasts at puberty is fairly common, and gender-identity is often ambiguous.
5.4. In a significant number of intersexed people, the cause of the ambiguous sexual anatomy is quite simply not known.
5.5. As a result of the impact in South Africa of Jeffrey Eugenides’ recent novel Middlesex, members of the South African reading public are likely to identify intersexuality with a particularly rare form of it. The novel concerns a person born with female body type, classified as female and reared as female, whose sexual organs become masculine in type with the onset of puberty. The syndrome which provides the subject of the novel, and which is described accurately therein, is called 5
Alpha Reductase Deficiency. In common with many intersex syndromes, it is transmitted genetically and is, as far as I know, restricted to specific pockets of population. One such pocket is found in the Dominican Republic, and another one is apparently found in Gaza. I have met only one person affected by this syndrome, in England, and think it likely that no-one in South Africa is affected by it.

6. I have been unable to obtain sight of local estimates of the number of South Africans who are intersexed, and will therefore extrapolate from an estimate for the United States by Professor Anne Fausto-Sterling. Estimates of the total number of people whose bodies differ from standard male or female range from one in four to one in a hundred. Applying this to the South African population yields a figure of between 450 000 and 1 125 000. In most of these cases, the degree of atypicality will be small, and will not have had a major impact on lives. Between one in 500 and one in a thousand is affected to a significant degree. Projected onto the South African population, this suggests that between 45 000 and 90 000 South Africans are intersexed to a significant degree. I understand that a South African geneticist has done a ten year study of the prevalence of intersexuality in South Africa and claims that South Africa has the highest prevalence of intersexuality in the world. In the event that this is so, my extrapolations from American figures may understate the number of intersexed people in our country.

7. As should be clear from the brief sketches of the major intersex syndromes given above, intersexuality is most often manifested not in alteration of the sex organs “by evolvement through natural development resulting in a sex change”, but rather in ambiguity of the sex organs from birth onwards. The only form of intersexuality which does, arguably, involve alteration of the sex organs “by evolvement through natural development resulting in a sex change” is the exceedingly rare 5 Alpha
Reductase Deficiency Syndrome, which is unlikely to be found in South Africa.

8. In the mid-1950s it became standard first-world practice to surgically to alter the ambiguous sex organs of intersexed infants and children, and to do so as early as possible. This was in spite of the fact that ambiguous genitalia rarely involve any risk to health or to life. Since it is technically far easier surgically to give the appearance of female external sex organs than male sex organs, a high proportion of intersexed infants and children, as well as toddlers born with unambiguously male sex organs whose male sex organs have suffered irreparable damage, have been assigned as female by means of surgery. The practice of imposing such surgery was based largely on the theories about the development of sexual identity of John Money in Baltimore, USA. The main empirical support for this theory was John Money’s report on the outcome of a case often called the “John/Joan case”. In 1997 a paper was published showing that Money had misrepresented the long-term outcome of this textbook case. The actual outcome was the direct opposite of what John Money had claimed it to be.
These revelations called the practice of imposing essentially cosmetic surgery on the sex-organs of intersexed infants and children radically into question. They also gave credence to the experience of a number of intersexed adults who, having suffered the imposition of surgery on their sex-organs as infants and children, told personal stories of long-term damage, both physical and psychological, in consequence of the surgery, and campaigned for the imposition of any such surgery on infants and children to be stopped except in cases where it was truly necessary for the reservation of health or life.

9. In contrast to the United States, Britain and other metropolitan countries, where the practice of imposing surgery on the sex organs of intersexed infants and children is being questioned increasingly from within the medical profession itself, the practice seems to continue unabated in South Africa.
Insofar as it effects people who are intersexed, the sharp focus of The Alteration of Sex Description and Sex Status Bill on the appearance of the sex organs is worrying because it threatens to provide support in law for the perpetuation of a largely discredited surgical practice.

Why the issue is of personal concern to me
10. I am intersexed. Having been born a few years before the practice of imposing surgery on the sex organs became standard practice, I was spared surgery and my sex organs remain unmodified. It has been determined that, had standard protocol for the classification of the sex of infants born with ambiguous sex organs been applied to me at birth, I would have been classified and reared as female.
In the event, I was classified and reared as male. Much later in life, when living in Britain, evidence that I am intersexed emerged, I was advised to live as female, and have done so unproblematically for the past ten years. In the course of that period I have learnt a great deal about intersexuality, have maintained close contact with intersexed activists outside South Africa and have become intensely aware of the issues, have written about the subject. Since being able to return to South Africa in 1999, I have sought to raise awareness about intersexuality in South Africa and to campaign for the rights of people who are intersexed.

11. Difficulties arose in the South African context. A routine application to renew my passport in 1996 was complicated by medical evidence that I am intersexed and that my sex organs are ambiguous. My identity document was withdrawn and, after being in limbo for many months, I was informed that in view of the medical evidence the Department of Home Affairs was unable to issue me with official documents under any description. Since the matter hinged on medical evidence, it was referred to the
Department of Health for adjudication. It was put to me informally that a way forward could be found were I to submit to surgery on my sex organs, whether this involved the surgical creation of male-type or female-type external sex organs. I made it clear at the time that I was not prepared to submit to any such surgery, which I viewed as mutilation. I also pointed out that the surgery involved is potentially life-threatening, and that it was unacceptable for it to be made a condition of having an identity that
one submit to life-threatening and essentially cosmetic surgery.

12. The issue was resolved ad hoc, after a battle which lasted for fifteen months, after Minister Kader Asmal wrote to the Department of Home Affairs on my behalf and after I threatened to test the handling of my situation against the Bill of Rights in law. Luckily, I was resident in England throughout this period, and did not have to cope with the far-reaching consequences of withdrawal of identity in South Africa itself. The Department of Health instructed the Department of Home Affairs to emend the
register of births to state that I was born female, and to issue me with documents. The decision was evidently that the classification of my sex at birth was to be treated as erroneous by reason of the fact that medical evidence showed it to have been contrary to standard protocol, and that the sex description in the register of birth was to be brought into conformity with the standard protocol.

13. Some time ago, I saw a television programme on which the Director: Communication of the Department of Home Affairs spoke about the likely passage of The Alteration of Sex Description and Sex Status Bill into law. At that stage, I was familiar only with the version of the Bill supported by the Law Commission in its report on the matter in 1995. It was clear from what the Director:
Communication said that the intention was that a request to alter a sex description would be granted only if it was proven that the applicant had a complete and adequate set of the appropriate sex organs, whether surgically or medically constructed or natural. He also implied that sex descriptions issued in the past would be likely to be reviewed retroactively in the light of this requirement, and that identity documents issued and status accorded in the past could well be withdrawn if the bearer of the
documents was not proven to have all the sex organs of the necessary kind and adequacy. It was clear from this that those like me, who have sex organs which are ambiguous from birth, would be likely to find themselves in an impossible limbo without identities in law.

Consequences of the emphasis on sex organs for the intersexed
14. The criterion for the registration of a sex description in the Bill as it stands is the appearance of the sex organs, and the rights and relief which it affords are extended only to those whose sex organs are altered so as to result in a sex change. While there is an attempt to accommodate intersexuality by including those in whom the requisite alteration occurs “by evolvement through natural development”, this in fact covers only those effected by an extremely rare intersex condition which is unlikely to be found in South Africa.

15. Most people who are intersexed are born with ambiguous sex organs. As a condition for the registration of sex description, the Bill as it stands requires that there have been an alteration of the sex organs which results in a sex change. This suggests that what will be required for registration of a sex description, should the Bill be passed into law as it stands, is that the new appearance of the sex organs be unambiguously consonant with the sex description in question. The criterion makes
absolutely no provision for sex organs which are ambiguous from birth.

16. As has been noted, the classification of the sex of infants born with ambiguous genitals is a judicious guess at optimal gender of rearing at best, and can easily prove to be the wrong one. The experience of a significant number of intersexed adults suggests that such “best guesses” are not infrequently wrong, despite the fact that in many such cases surgery on sex organs was imposed in infancy or childhood to reinforce the gender of rearing. The criterion at the heart of the Bill as it stands
threatens to make it impossible for an intersexed person whose sex organs remain ambiguous to have an identity in law, without submitting to potentially life-threatening surgery, in the gender-role which has proven to be least uncomfortable in practice.

17. People who are transsexual are, by definition, born with sex organs which are unambiguously of one sex and actively seek surgery to alter these. There is no unwelcome hardship imposed, given this, in making the appearance of the sex organs of transsexuals after the surgery which is so avidly sought by them into the criterion for the alteration of their sex descriptions. Intersexed people, by contrast, tend to be born with sex organs of ambiguous appearance. Those who are spared the trauma of non-consensual surgery on their sex organs do not necessarily seek or welcome such surgery. Ambiguous sex organs rarely pose a danger to the health or life of their owners, and they are not generally on public display. In contrast to the case of transsexuality, the requirement of the Bill that the appearance of sex organs be unambiguous is a major impediment for many people who are intersexed.

18. Since the Bill as it stands links sex description narrowly with the appearance of the sex organs, it will provide support in law for the practice of imposing genital surgery on those born with ambiguous sex organs even when this is not required for the preservation of health or life. As I have noted, this practice has been shown to be without solid theoretical and empirical support, and is increasingly being questioned within the medical profession abroad. There is also constitutional case-law, in the
form of a decision of the Colombian Constitutional Court, which calls it into question on the grounds that it violates the rights of those on whom such non-consensual surgery is imposed.

19. The practical effect of passage of the Bill as it stands for those like me could well be withdrawal of identity documents with all that this implies. Without an identity document one cannot vote and is thus disenfranchised. One cannot obtain a driver’s license or obtain social benefits which would otherwise be due to one. An identity number is required as proof of identity for a host of other practical purposes: access to medical treatment, being on systems through which one is paid for the work one
does, operating a bank account and more. It would surely be an injustice directly or indirectly to make so much which is fundamental to survival contingent upon submission to genital surgery.

Remedies
20. The consequences of the Bill noted above are surely unintended and unforeseen. They can be remedied by weakening the requirement for alteration of sex description if evidence is presented that someone is intersexed. In the case of intersexuality in general, I would suggest that the measure interrogate the proven ability of the applicant to live successfully in the desired gender-role. What could be required (as is the case with pre-operative transsexuals in the first world) is evidence that a real-life
test has been passed satisfactorily: expert testimony that the individual concerned has in fact lived stably and satisfactorily in the desired gender-role up to the present for an unbroken period of at least two years.

21. A set of amendments which might achieve this follow.
“(1) Any person whose sex organs have been altered by surgical or medical treatment or by evolvement through natural development resulting in a sex change, or any person who is intersexed, may apply to the Director-General …”
“(2) (c) in every case in which sex organs have been altered resulting in a sex change, be accompanied by a report …”
“(2) (d) in the case of a person who is intersexed, be accompanied by medical reports corroborating that the applicant is intersexed;
“(2) (e) in the case of a person who is intersexed, be accompanied by reports from a qualified psychologist or social worker corroborating that the applicant is living and has lived stably and satisfactorily, for an unbroken period of at least two years, in the gender-role corresponding to the sex description under which he or she seeks to be registered.”

 

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