Department of Private Law

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Browsing Department of Private Law by Author "Barnes, Johndre"

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    A right to legal gender recognition for transgender children in South Africa
    (Stellenbosch : Stellenbosch University, 2020-03) Barnes, Johndre; Mills, L.; Stellenbosch University. Faculty of Law. Dept. of Private Law.
    ENGLISH ABSTRACT: The term gender identity can be defined as referring to each person’s deeply felt internal experience of their gender, which may or may not correspond to the sex documented at birth. The mismatch between gender identity and identification documents has an impact on the abilities and experiences of transgender children. It may cause transgender children to experience discrimination, marginalisation, abuse and degradation, which may adversely affect their rights to human dignity, equality, freedom and the best interests of the child as guaranteed under the Constitution of the Republic of South Africa, 1996. Legal gender recognition refers to the official recognition of a person’s gender identity in key documents and public registries. In South Africa, the Alteration of Sex Description and Sex Status Act 49 of 2003 provides for legal gender recognition procedures. However, the Act requires that certain medical preconditions have to be met in order to access legal gender recognition, which, in turn, excludes transgender children, who do not want to or cannot follow the requirements set by the Act in order to alter their gender legally. This thesis seeks to analyse the duties placed on the South African government in terms of international law, regional law and the national legal framework, while also comparing the South African position to the position in foreign jurisdictions, in order to establish whether the right to legal gender recognition should be accessible to transgender children. Furthermore, the objective of this thesis is to show that the limitations placed on transgender children to access legal gender recognition is not reasonable and justifiable in an open democratic society based on human dignity, equality, freedom for all and is not in the best interests of transgender children. Therefore, this thesis will also provide recommendations as to how the process of access to legal gender recognition for transgender children should be realised and implemented in terms of the South African legal framework.