Submission concerning the Judicial Matters Amendment Bill B - 2004

By Sally Gross

Introduction
1. Section 15 of the Judicial Matters Amendment Bill, B __ 2004, seeks to amend the Promotion of Equality and Prevention of Unfair Discrimination Act, 2000 (PEPUDA), so as to extend the application of the Act expressly to include intersexed persons. There being considerable ignorance about Intersex, most South Africans and many legislators are unlikely to have prior knowledge as to why the it is desirable and necessary to ensure that intersexed persons are explicit beneficiaries of the provisions of PEPUDA. The first and primary purpose of this submission is to explain why this amendment is desirable and necessary. Secondly, there being a definition of “intersexed” in an existing Act, the submission will propose a slight amendment of the definition of “intersex” in order to ensure the compatibility of the definitions.

What Intersex Is
2. Intersexed people, to whom the term “hermaphrodites” also refers, are people whose physical sexual differentiation at birth is not typical. This may be the case at the level of the chromosomal pattern of the person, it may be evident in the internal structures of reproduction, in the make-up of the sex-glands, in the balance of sex-hormones, or in the structure of the external sex-organs. In many but not all 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.

3. Many distinct syndromes are covered by the umbrella-term “intersexuality” and yield sexual anatomy which is ambiguous or otherwise atypical in some way or other. In what follows, I shall enumerate some of the major intersex syndromes.
3.1. 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.
3.2. 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.
3.3. 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.
3.4. There are many more identifiable syndromes. It is important to note, however, that in a significant number of intersexed people the cause of the ambiguous or otherwise atypical sexual anatomy is quite simply not known.

Prevalence of Intersex
4. 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.
4.1. 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.
4.2. 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.
4.3. In a recent message I received from Professor Milton Diamond, a US-based academic who is one of the world’s leading experts on intersex, he was at pains to remind me that the prevalence of intersex in South Africa is among the highest in the known world. I understand that a South African geneticist has done a ten year study of the prevalence of intersexuality in South Africa which supports this conclusion. My extrapolations from US figures may well understate the number of intersexed people in our country.

Why the Amendment is to be Supported
5. I am intersexed, and know from personal experience that prejudice against those known to be intersexed can run unexpectedly high. Difficulties which I have experienced include refusal to issue official identifying documents because of medical evidence that I am intersexed; problems in connection with the obtaining of membership in a medical aid because I am intersexed; anonymous death-threats and letters to my public-service employers seeking to secure my dismissal specifically
because I am intersexed. My response has been to challenge and fight discrimination, and I have done so successfully. I fear, however, that there are many intersexed people who lack the knowledge, contacts, means and energy to challenge far-reaching stigmatisation, prejudice and discrimination. The amendment of PEPUDA to provide explicit protection in law against discrimination on the grounds of intersex addresses this issue.

6. The most important reason for the amendment to PEPUDA, however, is that it will close a major loophole in South African law as it stands which allows almost limitless discrimination in theory, provided that it is on the sole ground of intersexuality.
6.1. The terms “sex” and “gender”, as used in the Equality Clause of the Bill of Rights and in PEPUDA, is not defined currently and therefore rests upon standard lexical definitions. Standard lexical definitions define the terms dichotomously when applied to human beings, recognising only male and female and incorporating no recognition of intermediate or non- standard sexual differentiation. Intersex is therefore excluded implicitly from the scope of these terms in the lexical sense on which their use in law is based.
6.2. There is a piece of case-law, Wood v CG Studios, which brings out the implications of this. The case in question was an American one.
6.2.1. A Ms Woods was fired in Pennsylvania when her employers learned that she was intersexed. Ms Woods challenged the dismissal, arguing that her employers had violated a Pennsylvania statute similar to our Equality Clause affording protection against dismissal on grounds of sex or gender, as well as on a number of other grounds. The court found against Ms Woods, arguing that the terms “sex” and “gender” in the statute, resting as they did on lexical definitions, afforded protection against dismissal of a person because that person was a man or because that person was a woman. The logic of the argument of the court was that the statute did not prohibit the dismissal of someone by reason of the fact that the person in question was intersexed.
6.2.2.In 1996, a report was prepared by the South African law Commission in or around 1996 at the request of the Minister of Justice, in which what was to become The Alteration of Sex Description Bill was first considered formally. The report focused primarily on transsexuality, but also touched on intersex. Commenting on the Equality Clause, the authors of the report noted that it afforded no protection either to those who were transsexual or to the intersexed. It is clear that the reasoning of the authors of the report is similar to that of the court in the
Wood v CG Studios case.
6.3. As matters stand in South Africa, intersex does not fall within the scope of the term “sex” by reason of standard lexical definitions.
6.3.1.Intersex is therefore not a listed ground in the context of the Equality Clause and PEPUDA, in which discrimination is deemed to be unfair until proven to be fair. It is an analogical ground at best, in which the burden of proof is reversed. Discrimination is deemed to be fair until and unless proven to be unfair by the party suffering the discrimination. Thus, it is currently incumbent upon anyone intersexed suffering discrimination by sole reason of being intersexed to prove that the discrimination is unfair.
6.4. At this stage, another consequence of the lexical definitions needs to be considered.
6.4.1.The terms “sex” and “gender”, as applied to human beings, form part of a linked lexical group which includes person in the sense of natural person and human being. The dichotomous definition of “sex”, in terms of which any human being is either determinately and unequivocally male or determinately and unequivocally female affects the lexical senses of these other terms. This being the case, it is possible to argue that someone whose sex is neither determinately and unequivocally male or determinately and unequivocally female does not satisfy the at least
one criterion of what it is to be a natural person of a human being in law.
6.4.2.Given the need for locus standi in South African law in order to challenge discrimination formally or to be represented in such a legal challenge against discrimination, a possible form of discrimination on the sole ground of intersexuality is to argue that an intersexed person lacks the locus standi necessary to challenge discrimination.
6.4.3.This move is potentially self-vindicating. It discriminates against intersexed people on the sole grounds of their being intersexed. Given that intersex is not one of the listed grounds at present, this form of discrimination is to be deemed fair, the burden of proof that it is unfair resting with the intersexed person or that person’s legal representatives. The effect of the discrimination, however, is to render it impossible for the intersexed person or that person’s legal representatives to challenge the fairness of that discrimination or indeed of any other form of discrimination provided that it is on the sole ground of intersexuality. A loophole is
thus available which makes it theoretically possible to deny any or all rights to a person on the sole ground that the person in question is intersexed. This would clearly be a gross injustice, and the possibility of any such move must be blocked legislatively in the interests of justice.
6.5. The proposed amendment to PEPUDA blocks any such move by the statutory stipulation that intersex forms part of the meaning of the term “sex” in PEPUDA and, by interpretation, in the Equality Clause itself. It achieves a great deal simply and elegantly, in a way which engages with the linguistic intuitions of most people. Asked whether non-standard sexual differentiation (that is to say intersexuality) is or is not part of the meaning of the term “sex”, anyone possessed of reason will surely say that it is indeed part of the meaning of the term “sex”.

Consistency of Definitions
7. In section 15 of Judicial Matters Amendment Bill, “intersex” is defined as follows: “'intersex' means an atypical congenital physical sexual differentiation”.
7.1. It should be noted that there is an existing definition relating to intersex in a South African statute. The definition in question is the sole definition of its kind in South African law. It is important that the definition in PEPUDA be consistent with the existing definition in question.
7.2. The definition in question is to be found in section 1 of the Alteration of Sex Description and Sex Status Act, No. 49 of 2003. It reads: ‘”intersexed”, with reference to a person, means a person whose congenital sexual differentiation is atypical, to whatever degree’.
7.3. The qualification “to whatever degree” is evidently meant to pre-empt questions in court as to whether a given person’s sexual differentiation is atypical enough to count as intersexed. In the context of PEPUDA, the message which needs to be given is surely that any negative discrimination on the grounds of atypical sexual differentiation is unjust and unacceptable, whatever the degree of atypicality. The force of incorporation of the definition into PEPUDA would therefore be enhanced by inclusion of the qualification “to whatever degree”, while also maximising the consistency of the definitions relating to intersex in South African law.
7.4. In the proposed definition, the word “an” is redundant and should therefore be removed. It has probably been inserted because the word “atypical” (one word), which follows it, could easily be taken to be “a typical” (two words), which means quite the opposite. This can be remedied by substituting “congenital physical sexual differentiation which is atypical”, along the lines of the definition in Act 49 of 2003.

Suggested Amendment of the Proposed Definition in the Interests of Consistency
8. I therefore propose that the definition for inclusion in section 1 of PEPUDA read:
‘“intersex” means congenital physical sexual differentiation which is atypical, to whatever degree’.

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