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[2017] ZAWCHC 90
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KOS and Others v Minister of Home Affairs and Others (2298/2017) [2017] ZAWCHC 90; [2017] 4 All SA 468 (WCC); 2017 (6) SA 588 (WCC) (6 September 2017)

Republic
of South Africa
IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
Case
number: 2298/2017
Before: The Hon. Mr Justice Binns-Ward
Hearing: 10 August 2017
Judgment:
6 September 2017
In
the matter between:
KOS
First
Applicant
MMC
Second
Applicant
GNC
Third
Applicant
HA
Fourth
Applicant
WJV
Fifth
Applicant
HJV
Sixth
Applicant
GENDER
DYNAMIX
Seventh
Applicant
and
MINISTER
OF HOME
AFFAIRS
First
Respondent
DIRECTOR-GENERAL:
DEPT. OF HOME AFFAIRS
Second
Respondent
DEPUTY
DIRECTOR-GENERAL: DEPT. OF
HOME
AFFAIRS: CIVIC
SERVICES
Third
Respondent
JUDGMENT
BINNS-WARD
J:
Introduction
[1]
This case came to court because of the
difficulties transgendered persons in marriages that were solemnised
in terms of the Marriage
Act 25 of 1961 are experiencing in obtaining
the recordal by the Department of Home Affairs of their sex/gender
change, as provided
for under the Alteration of Sex Description and
Sex Status Act 49 of 2003 (‘the Alteration Act’).
[2]
The
first to sixth applicants are three married couples.  Their
marriages were duly solemnised in terms of the Marriage Act.

The first, third and fifth applicants (to whom I shall refer
individually as ‘KOS’, ‘GNC’, and ‘WJV’,

respectively,
[1]
or collectively as ‘the transgender spouses’) were
registered at birth as males.  That happened because
they were
born as biologically male.  The second, fourth and sixth
applicants, with whom KOS, GNC and WJV are respectively
wed, are
female.  After they had married, each of the transgender spouses
underwent surgical and/or medical treatment to alter
their sexual
characteristics
[2]
from those of a male to those of a female.  They did this
because from an early age they had experienced tormenting gender

dysphoria.
[3]
Their self-awareness was that of being female trapped in a male body.
Transitioning
[4]
was the means to liberate them from their gender dysphoria and
express their self identification.
[5]
[3]
The Alteration Act makes provision for the
formal acknowledgment, recordal and legal consequences of such
transitions.  It
allows for the alteration, upon application to
the director-general of the Department of Home Affairs (who has been
cited as the
second respondent in these proceedings), of a person’s
sex description on the birth register and the provision to the person

concerned of an altered birth certificate.
[6]
It also provides that a person whose sex description has been altered
is deemed for all purposes to be a person of the sex
description so
altered ‘
as from the date of the
recording of such alteration
’.
[7]
Section 3(3) provides that rights and obligations that have
accrued to or been acquired by such a person before the
alteration of
his or her sex description are not adversely affected by the
alteration.  The legal consequences of the recognition
of a
sex/gender-change in terms of the Alteration Act are therefore wholly
prospective from the date of the recordal; the Act does
not have any
retrospective effect.
[4]
By
virtue of its foundation in the agreement between the intending
spouses to enter into it, marriage brings about mutual rights
and
obligations that have been recognised to be contractual in legal
character, albeit
sui generis
and entailing public law consequences.
[8]
The effect of s 3(3) of the Alteration Act is that the recordal
of a postnuptial sex/gender change in respect of either
or both the
spouses has no effect on their mutual marital rights and
obligations.  Those endure as long as the marriage does.

It also has no effect on the transgendered person’s rights
against, and obligations to third parties.
[5]
The
effect of an alteration of the record of a person’s gender or
sex description on their birth register pursuant to the
grant of an
application in terms of the Alteration Act is that his or her sex
descriptor is also altered on the population register.
This
follows in terms of the provisions of
s 5
of the
Births and
Deaths Registration Act 51 of 1992
.
[9]
The population register is compiled and
maintained by the Department of Home Affairs in terms of the
Identification Act 68 of 1997
.
[6]
In
terms of
s 8
of the
Identification Act, the
population register
must record a comprehensive range of information concerning each and
every South African citizen and permanent
resident.  The
information to be recorded includes particulars of such persons’
names, dates of birth, gender
[10]
and identity numbers.  It also includes the
particulars (if applicable) of each such person’s marriage
contained in the
relevant marriage register or other documents
relating to the contracting of the marriage, ‘
and
such other particulars concerning his or her marital status as may be
furnished to the director-general
’.
[11]
[7]
The
identity number that is allocated to every person on the population
register comprises a set of figures.  In addition to
a serial,
index and control number, it consists of a reproduction, in figure
codes, of (a) his or her date of birth, (b) gender;
and
(c) South African citizenship status.
[12]
It does not reflect the person’s
marital status.
[8]
The
alteration of a person’s sex description in terms of the
Alteration Act also has other knock-on consequences.  Every

person on the population register over the age of 16 is required to
have an identity card (commonly called an ‘ID book’).
If
for any reason the card does not correctly reflect the holder’s
particulars, he or she must apply for a replacement
identity
card.
[13]
It follows that anyone who has transitioned is
obliged to apply for a new identity document, which necessarily will
reflect a reassigned
identity number incorporating an altered
gender-related figure code.  In order to be able to comply with
that statutory obligation,
he or she would be required first to
obtain a formal recordal of the change in terms of the Alteration
Act.  Making application
under the Alteration Act in such cases
will therefore be a matter of obligation, rather than one of choice.
[9]
There
must be a ‘recent photograph’ on the population register
of every person over the age of 16.  The photograph
must be
provided or replaced every time such person applies for an identity
card or a replacement identity card.
[14]
The identity card will therefore also include a
photograph of the holder; in most cases reflecting the person’s
appearance
as recognisably male or female.
Section 17(1)
of the
Identification Act provides
: ‘
An
authorised officer as defined in subsection (3) may at any time
request any person reasonably presumed to have attained the age
of 16
years to prove his or her identity to that officer by the production
of his or her identity card as defined in subsection
(4)
’.
If anyone is called upon by an ‘authorised officer’
[15]
to prove who he or she is, they are required to
produce an ‘identity card’.  A driver’s
licence or a passport,
being documents ‘
issued
by the State and on which the name and a photograph of the holder
appear
’, would serve as an
identity card for the purposes of proving one’s identity.
[16]
[10]
It will readily be deduced from what I have
described thus far that the formal recording of a person’s
gender or sex description
is a matter of material legal and practical
significance.  The many and various difficulties that could
present for a person
whose gender characteristics differ from those
recorded on his or her identity card are not hard to imagine.
The evidence
bears this out.
[11]
The transgender spouses applied in terms of
s 2(1) of the Alteration Act for the alteration of their sex
descriptions on their
respective birth registers.  The
applications had the blessing and support of the transgender spouses’
marriage partners.
The first to sixth applicants are content in their
respective marital relationships and currently have no wish or
intention to
end them.
[12]
It was common ground that, apart from
death, divorce is the only manner in which their marriages can be
dissolved.
[17]
A divorce would be obtainable only if it could be proved that there
had been an irretrievable breakdown of their marriage
relationship,
or that one of them was suffering from mental illness or continuous
unconsciousness as contemplated in
s 5
of the
Divorce Act 70 of
1979
.  They have pointed out, correctly, that as they cherish
their marriages there is no legal basis for them to be dissolved.
[13]
They consider the fact that the
registration of the altered sex status of the transgender parties
will result in the public records
showing that their marriages have
become same-sex marriages to be irrelevant to their marriage status.
For reasons to be
described presently, the Department of Home Affairs
takes a different view.  It maintains that the applications by
the transgender
spouses under the Alteration Act cannot be granted
while their marriages remain registered as having been solemnised in
terms of
the Marriage Act.
[14]
In the result, the applications by KOS and
GNC in terms of the Alteration Act have effectively been refused;
alternatively, the
Department has failed to make a decision in
respect of them.
[15]
In the case of WJV, however, the Department
did alter his sex description.  But when it did so, it
simultaneously deleted the
particulars recorded in the population
register of the WJV’s marriage with the sixth applicant.
It did this unasked.
It also changed the record of the sixth
applicant’s surname to her maiden name.
[16]
I shall relate the history of each of these
applications in some detail later in this judgment.
[17]
The Department’s position is founded
on its understanding of the import of the current statutory regime
that provides a parallel
system for the solemnisation of marriages.
Since 30 November 2006, civil marriages may be solemnised under
the provisions
of either the Marriage Act or the
Civil Union Act 17
of 2006
.  The enactment of the
Civil Union Act was
the
legislative response to the judgment of the Constitutional Court in
Lesbian and Gay Equality Project and
Others v Minister of Home Affairs and Others
[18]
.
That case concerned a challenge against the constitutionality of the
Marriage Act and the common law definition of marriage
because they
unfairly discriminated against gay and lesbian couples by precluding
them from marrying.
[18]
In
the
Equality Project
case, the Court declared the common-law definition of marriage to be
inconsistent with the Constitution and invalid to the extent
that it
did not allow for same-sex couples who wanted to formalise their
unions to enjoy the status and the benefits, coupled with
the
responsibilities, that it accorded to opposite-sex couples who
married.  The Court also declared that the omission from
the
marriage formula in s 30(1) of the Marriage Act after the words ‘
or
husband
’ of the words ‘
or
spouse
’ was inconsistent with the
Constitution.
[19]
It declared the Marriage Act to be invalid to the
extent of that inconsistency.
[19]
The
Court suspended the declarations of invalidity for 12 months to
enable Parliament to correct the defects.  Its order
provided
that in the event of Parliament failing to correct the defects within
the afforded period, s 30(1) of the Marriage Act
would thenceforth
fall to be read as including the words ‘
or
spouse
’ after the words ‘
or
husband
’ as they appear in the
marriage formula in that provision.  Notwithstanding that the
Court did not express make a declaration
to that effect, the import
of its judgment was to develop the common law concept of marriage to
connote ‘a union of
two persons
,
to the exclusion, while it lasts, of all others’.  That
much was necessarily implied in the finding that the previously

expressed definition that marriage was ‘a union of
one
man
with
one
woman
, to the exclusion, while it
lasts, of all others’ was unlawfully discriminatory and
infringed the right of gays and lesbians
to enter into the sort of
publically formalised union that heterosexual couples could by
marrying under the Marriage Act.
[20]
At
the heart of the
Equality Project
case was the right of gays and lesbians to equality with heterosexual
persons in respect of the institution of marriage.
It perhaps
bears emphasis, as an important aside, that sexual orientation or
preference - the expression of a person’s sexuality
– is
not an issue in the current proceedings.
[20]
There is no evidence about the first to sixth applicants’
sexuality.  Nor was there any need for such.  As
Lord
Nicholls of Birkenhead thought it relevant to point out in
Bellinger
,
[21]
‘…
a transsexual person is
to be distinguished from a homosexual person. A homosexual is a
person who is attracted sexually to persons
of the same sex
’.
Many might think that that is to state the obvious, but the
literature on transgenderism describes that there is
an all too
common tendency to conflate sex, gender and sexuality, which is
misconceived.
[22]
The tendency is manifested in the reliance by the respondents, in
explanation of their approach to the interpretation and

administration of the Alteration Act in respect of persons married in
terms of the Marriage Act who subsequently transition, on
the
reported widespread opposition to any amendment of the Marriage Act
to permit the formalisation of marriages between homosexual
couples.
The opposition to gay marriage was, amongst other things, advanced on
the basis of ideas that ‘
sex is …
an essential determinant of the relationship called marriage
’
and that ‘
the capacity for natural
heterosexual intercourse
’ is
essential for the subsistence of a marriage – I quote from the
judgment of Ormrod J in
Corbett v
Corbett
,
[23]
which was also a case concerning marriage and transgenderism.
That viewpoint, or opinions aligned to it, seem to reflect
what the
respondents, in the context of the current case, characterise as
relevant ‘
deep public and private
sensibilities
’ that allegedly
bear on their ability to record the transgender spouses’
sex/gender change
[24]
That such views have long since been legally discredited is
evidenced, for example, by the following statement in the judgment
of
the European Court of Human Rights in
Cossey
’s
case
[25]
:
…
Mr Justice Ormrod’s
arguments are clearly unacceptable. Marriage is far more than a
sexual union, and the capacity for sexual
intercourse is therefore
not “essential” for marriage. Persons who are not or are
no longer capable of procreating
or having sexual intercourse may
also want to and do marry. That is because marriage is far more than
a union which legitimates
sexual intercourse and aims at procreating:
it is a legal institution which creates a fixed legal relationship
between both the
partners and third parties (including the
authorities); it is a societal bond, in that married people (as one
learned writer put
it) "represent to the world that theirs is a
relationship based on strong human emotions, exclusive commitment to
each other
and permanence"; it is, moreover, a species of
togetherness in which intellectual, spiritual and emotional bonds are
at least
as essential as the physical one.
(Footnotes
omitted.)
I
am unable to find anything in that statement that is inconsistent
with the concept of marriage in our modern law.
[26]
[21]
As mentioned, Parliament responded to the
Equality Project
judgment by enacting the
Civil Union Act.  It
left s 30(1)
of the Marriage Act on the statute book unchanged.  It may be
inferred that the legislature’s approach
was that by enacting
the
Civil Union Act it
had corrected the identified constitutional
incompatibility in that provision of the Marriage Act.
[22]
‘
Marriage’ is not defined in
either Act.  It is established that the word is used in the Act
consistently with its meaning
in the common law.
[27]
Counsel on both sides accepted, correctly in my view, that the
word also has that meaning in the
Civil Union Act.
>
[28]
It follows that it was also not in issue between the parties that the
common law has been developed in the manner described
earlier.
[29]
[23]
The
parties appeared to be in agreement at the hearing that, by reason of
the unchanged wording of s 30(1) of the Marriage
Act,
[30]
only marriages in which the intending parties are of opposite sex can
be solemnised under that statute.
[31]
Equivalent unions under Civil Unions Act, by contrast, may be
solemnised irrespective of the sex/gender of the parties
thereto.
[32]
The parties entering into a formalised union under that Act must
elect whether it is to be called a ‘marriage’
or a ‘civil
partnership’.
[33]
Whichever designation is chosen, the character of a union entered
into in terms of the
Civil Union Act is
indistinguishable in its
legal effect and consequences from one solemnised under the Marriage
Act.
[34]
The
Civil Union Act is
therefore available to both opposite-
and same-sex couples for the solemnisation of their intended
marriages.  A man and a
woman intending to get married to each
other accordingly have a choice about the statute under which they
will exchange their vows;
[35]
a same-sex couple does not.  I shall describe the reported
reason for this anomaly presently.
[24]
Marriage officers who hold their position
ex officio
by virtue of s 2 of the Marriage Act are automatically also
‘marriage officers’ in terms of the
Civil Union Act.
[36
]
However, in terms of
s 6
of the
Civil Union Act a
marriage
officer
ex officio
may notify the Minister that he or she objects on grounds of
conscience, religion and belief to solemnising a civil union between

two persons of the same sex, whereupon he or she is not obliged to
solemnise such a civil union.  Save as aforesaid, a marriage

officer under the
Civil Union Act ‘
has
all the powers, responsibilities and duties, as conferred upon him or
her under the Marriage Act, to solemnise a civil union’
.
[37]
[25]
Whether or not the dichotomous regime in
respect of the solemnisation of marriages is constitutionally
compatible is not a question
that has to be decided in this case.
[38]
[26]
In addition to the six applicants
identified thus far, a registered non-profit organisation called
Gender Dynamix (‘GDX’)
was also party, as the seventh
applicant, to the institution of the proceedings.  Using a human
rights framework, GDX seeks
to advance, promote and defend the rights
of transgender and ‘gender non-conforming’ persons in
South Africa and beyond.
The seventh applicant has been working
for a decade now on various issues concerning ‘
the
lack and/or improper implementation of the
[Alteration]
Act
’.
A number of its employees or former employees had contributed to the
enactment of the statute.
The
history of problems regarding the Alteration Act
[27]
The
current executive director of the seventh applicant testified that
the organisation’s experience was that the implementation
of
the Alteration Act has been attended by a variety of problems.
She described that these fall into ‘three basic categories:
(a)
Ignorance
by relevant officials of the existence and content of the Act.
(b)
The
absence of prescribed forms and procedures for the administration of
the Act,
[39]
with the result that some persons experienced what was described as
‘persecution’ when making applications under the
Act.
and
(c)
The
requirement by the Department of Home Affairs that applicants who
were in marriages that had been solemnised in terms of the
Marriage
Act first obtain a divorce before being allowed to have their altered
sex/gender recorded under the Alteration Act; alternatively,
‘
in
extreme cases
’, the arbitrary
deletion or alteration by the Department of the official record of
the affected marriages when a sex/gender
alteration was recorded.
(In one example given by the deponent, a person who submitted an
application under the Alteration
Act in 2009 had had the record of
her marriage, which had been solemnised in 1976 in terms of the
Marriage Act, changed, without
her foreknowledge, to that of a
marriage purportedly solemnised under the
Civil Union Act in
2009.)
[28]
The deponent to the seventh applicant’s
supporting affidavit related that the reasons offered to applicants
by the Department
for the last-mentioned category of difficulty have
included its understanding of the effect of the dichotomous regime
provided
by the existence side by side of the Marriage Act and the
Civil Union Act and
the reported inability of the Department’s
data capturing system to reflect parties to marriages that had been
solemnised
under the Marriage Act as being of the same sex.
According to the deponent, the Department’s perception that a
catch-22
situation prevails has resulted in a number of applications
just being left undetermined by the Director-General.  One of
the consequences has been that the ability of applicants to avail of
the internal appeal remedies afforded in terms of the Alteration
Act
has been thwarted.
[40]
[29]
The Department has not been absolutely
consistent, however, about its inability to register an alteration of
sex in terms of the
Alteration Act when the applicant has been party
to a subsisting marriage in terms of the Marriage Act.  The
example was cited
of a person who had applied for relief under the
Act in 2011.  Having initially been informed that she would
first need to
obtain a divorce, which she refused to do, the
Department was eventually persuaded, after the applicant had obtained
legal representation
with the assistance of GDX, to amend the gender
marker despite the continued subsistence of the marriage.  It
did so without
‘converting’ the record of the union to
one under the
Civil Union Act.
[41
]
[30]
The absence of a uniform approach by the
Department to these matters is striking.
[31]
The seventh applicant has been involved
since 2011 in a series of engagements with the Department and the
parliamentary portfolio
committee for Home Affairs in an endeavour to
resolve the difficulties.  These have not borne fruit, and in
some instances
its approaches were not even favoured with
acknowledgment.  According to its executive director, GDX has
assisted the first
to sixth applicants to institute and prosecute the
current proceedings because the organisation’s ‘
advocacy
efforts on the issue have simply been ignored
’.
[32]
The
experiences of the transgender spouses confirm that the Alteration
Act is being unsatisfactorily administered. It is appropriate
to
describe them in greater detail because they have each sought
declarations in terms of s 172(1)(a) of the Constitution
that
the respondents’ conduct in respect of their applications under
the Alteration Act was inconsistent with the Constitution.
The
affirmative significance of such declarations, quite apart from any
remedial or ancillary relief that might attend them, is
axiomatic.
KOS’s
application in terms of the Alteration Act
[33]
KOS was born in 1981.  She was raised
as a male, but says that she ‘always knew that [she] was
different’. She
married the second applicant in 2011, a year
before she was diagnosed with gender dysphoria.  She has been on
hormone therapy
since 2013 preparatory to gender reassignment
surgery.
[34]
She submitted her application in terms of
the Alteration Act in March 2014 at the Department of Home Affairs’
offices in George.
Her wife accompanied her.  The first
official with whom they dealt refused to accept the application,
despite KOS having a
copy of the Act with her.  The official
advised KOS that it could not be possible to alter her gender as that
‘
must be an offence of some
kind
’.  So despondent was
KOS at this treatment that it was only at the insistence of her wife
that they thereafter arranged
to see a different official, who agreed
at least to accept the application, whilst nonetheless expressing
reservations about its
feasibility.  (KOS’s reception at
the Home Affairs office manifests the category of problem described
in paragraph [27](a)
and (b) above.)
[35]
Despite repeated enquiries KOS and her
family were unable to obtain any information or feedback about the
progress of the application.
An email from KOS’s mother
to the Minister in February 2015, which catalogued nine fruitless
telephone calls to the Department’s
client services desk during
the period November 2014 to February 2015 about the lack of response
to the application, was not favoured
with reply or acknowledgment.
[36]
During the prolonged period that her
application was mired in bureaucratic inertia, KOS was all the while
gradually coming to look
more like a woman than a man as a result of
the hormonal treatment that she was receiving.  She consequently
found herself
in embarrassing situations in which she was called upon
to explain why her appearance did not correspond with that depicted
on
her official identity cards.  Some people proved sympathetic
to her predicament; from others it elicited reactions of suspicion
or
hostility.  This caused her increasingly to withdraw from
dealing with the outside world and leave the management of her

affairs to her wife.
[37]
Eventually, in April 2015, KOS approached
the Department’s provincial headquarters in Cape Town.  She
set out the unsatisfactory
history of her application and pointed out
that the altered birth certificate that she had applied for was
essential to enable
her ‘
to be
able to resume my life as a registered South African citizen
’.
She explained that without it she could not obtain her ‘
new
ID book, driver’s licence, passport
[or]
even open… a bank account
’.
An official there took up the first applicant’s cause.
[38]
It was discovered that the Department’s
head office in Pretoria, to which the office in George should have
directed the application,
had no record of it.  However, even
after a copy of the application was then faxed to the Pretoria on two
occasions, a response
was still not forthcoming.  To their
credit, KOS’s exasperation about the lack of progress was
shared by the officials
in Cape Town who were dealing with the
matter.
[39]
On 23 June 2015, the Department’s
head office advised that more information in the form of expert
reports was required; in
particular, a letter from a medical doctor
stating that ‘
the operation was
done
’.  Gender reassignment
surgery is actually not a requirement for relief in terms of the
Alteration Act.  (The head
office request was a further
manifestation of the problem described in paragraph [27](a) above.)
KOS nevertheless provided
an additional letter from her doctor, but
this notwithstanding, another four months passed without progress.
[40]
After pressing the official dealing with
the matter for a response, KOS was informed by telephone in late
October 2015 that it had
been ascertained that she was married and
that the application could not be processed without proof that she
had obtained a divorce
(the problem identified in paragraph [27](c)
above).  The reason given was that two women could not be
married to each other.
When KOS challenged the validity of that
proposition, she was told that the problem related to the
Department’s computer
system, which would not allow KOS’s
identity number to be changed while she remained registered as having
been married under
the Marriage Act.  (It will be recalled that
a person’s marital status is not reflected on their identity
number.
[42]
)
It was suggested that she and the second applicant should go through
with divorce proceedings and then remarry under the
Civil Union Act.
[41
]
KOS and the second applicant thereafter
took legal advice concerning divorce proceedings and were advised,
correctly, that absent
an irretrievable breakdown in their marital
relationship, no grounds existed for them to seek an order under the
Divorce Act for
the dissolution of their marriage.
[42]
The upshot is that KOS’s application
has effectively been refused; alternatively, the Director-General has
failed to make
the decision that he was required to in terms of the
Alteration Act.
GNC’s
application in terms of the Alteration Act
[43]
GNC was born in 1953.  She experienced
gender dysphoria from her early years, but for a long time resisted
accepting her female
self.  She did this by consciously adopting
especially masculine roles, such as voluntarily enlisting in a combat
unit during
her compulsory army service and later becoming a
geologist, which she perceived to be a profession preponderantly
associated with
men.
[44]
GNC married the fourth applicant in 1988,
long before the enactment of the
Civil Union Act.  They
have a
daughter, who was born in 1992.
[45]
For many years GNC internalised her gender
dysphoria and suffered considerable distress by having to live with
what she called her
‘secret’.  She disclosed her
situation to her wife only in 2014.  The fourth applicant has
been understanding
of GNC’s situation and supported her
decision to transition.
[46]
GNC has undergone gender reassignment
surgery.  She has also succeeded in changing her forenames and
obtaining an identity
document that reflects her appearance as a
female, but incongruously continues to indicate her sex/gender as
male.  When she
applied for an altered birth certificate she was
informed, in July 2016, by the same official who dealt with KOS’s
application
that the Department’s computer system ‘
simply
[would]
not allow an amendment to
[her]
gender as
[she]
was married in terms of the
Marriage Act
’.  GNC was also
advised to obtain a divorce and to remarry under the
Civil Union
Act.  Understandably
, she sees ‘
no
need to get a divorce to satisfy a computer system
’.
In the circumstances, GNC’s application has also effectively
been refused.
[47]
Like KOS, GNC has encountered difficulties
and embarrassment in her day to day dealings with the outside world.
This has been
caused by the discrepancy between her appearance and
the sex/gender descriptor on her identity documents.
WJV’s
application in terms of the Alteration Act
[48]
WJV was born in 1971.  She experienced
gender dysphoria from an early age.  When she told her father
that she was in fact
not a boy, but a girl, she was given a severe
beating and subsequently compelled to participate in what her father
regarded as
masculinising activities.  She came close to
physically transitioning in the early 1990’s but was persuaded
by her psychologist
that medical intervention might not be
necessary.  She was drafted into the army before she could make
a decision.  She
did not fit in well in the military and her
experience there was an unhappy one.
[49]
WJV met the sixth applicant after her
discharge from the army.  They were married on 13 September
1997.  WJV had
told her wife about her gender dysphoria before
the marriage.
[50]
WJV commenced the process of physically
transitioning in 2012.  She approached the offices of the
Department of Home Affairs
at Roodepoort in November 2013 with a view
to having her registered names and sex descriptor changed.  The
official with whom
she dealt there advised that it would be better to
tackle those objectives using a two-stage process; that is by first
having her
names changed, and then, when that had been done, applying
for her sex description to be altered.  The official advised
that
trying to achieve both objectives together would ‘
confuse
the system
’ and be likely to
cause ‘
a slowing and/or stalling
of the application
’.
[51]
Not wishing to prejudice her applications,
WJV went along with the advice and applied first for a change of
forenames.  In
March 2014 she received notice that her forenames
had been officially changed in terms of
s 24
of the
Births and
Deaths Registration Act 51 of 1992
, and she was issued with a
replacement identity document.
[52]
WJV submitted her application under the
Alteration Act on 7 June 2014.  She was able to track the
progress of the application
through the official channels.  The
application was cleared in respect of fingerprints on 24 June 2014.
By 15 July 2014
the system reflected that the application had been
‘processed’, and then showed that the ‘rectification
department’
had received it on 21 July.  From that stage,
however, the hitherto reasonably efficient treatment of the
application ceased.
[53]
The lack of any further progress caused WJV
to enlist the assistance of the Legal Resources Centre (‘LRC’)
in December
2014.  The LRC wrote repeatedly to the Department,
including direct approaches to the Director-General and the
Minister.
The papers suggest that, save for one reply from the
Department’s client services centre, the correspondence from
the LRC
was not even acknowledged.
[54]
Eventually, in October 2015, WJV was
invited to come to the Department’s office in Roodepoort as her
documents were ready.
She was advised that her wife should
accompany her, as it would be necessary for the sixth applicant to
apply for a replacement
identity document.  On arrival at the
office, WJV was handed a letter confirming that her gender had been
changed.  The
sixth applicant was informed that she was required
to obtain a replacement identity card.  It was explained to WJV
and her
wife that as a consequence of the registration of WJV’s
sex/gender change, the Department had had to delete its record of

their marriage, and that the sixth applicant’s surname had
therefore reverted to her maiden name.  WJV and the sixth

applicant learned that the Department’s ‘system’
now reflected that they had never married.  They were advised

that they were free to marry under the
Civil Union Act, and
told that
the Department would be willing to facilitate the solemnisation of a
marriage between them under that Act.
[55]
WJV also testified to various difficulties
that she had had with her shopping and banking accounts because of
the disparity between
her registered and apparent identities.
Her work requires her to travel to neighbouring countries, which she
says ‘are
known to be hostile to LGBTI communities’.
It has been a constant concern to her that the incongruence between
her
identity documents and her physical presentation might lead to
difficulties on these trips, as is the prospect of being stopped
by
the local law enforcement authorities and having to explain her
situation to strangers who might not accept her account and
arrest
her.
The
relief sought in these proceedings
[56]
The applicants applied in their notice of
motion for varied and wide-ranging relief.  It is sufficient at
this point to describe
it in the broad.  By way of primary
relief they sought various types of declaratory relief affirming the
subsistence of their
marriages; declaring that the second respondent
‘
is required by law to alter a
person’s sex description in terms of the Alteration
[Act]
…
irrespective of that person’s
marital status
’ and declaring
that the Department’s refusal to process the applications of
KOS and GNC in terms of Alteration Act
because they were married in
terms of the Marriage Act was unconstitutional and unlawful, and that
its deregistration of the marriage
between WJV and the sixth
applicant was also unlawful and unconstitutional.
[43]
They also sought interdicts directing the second respondent to grant
the applications by KOS and GNC under the Alteration
Act and to
correct the population register to reflect that WJV and the sixth
applicant are married to each other.
[57]
Contingently upon the court taking the view
that the primary relief, or at least part of it, fell properly to be
sought in proceedings
under the Promotion of Administrative Justice
Act 3 of 2000 (‘PAJA’), the applicants sought
condonation, in terms
of s 9 of that Act, for having instituted
the proceedings outside the time limit prescribed in s 7(1) of
the Act and,
in terms of s 7(2)(c), exempting them from
exhausting the internal remedies under the Alteration Act.
[58]
By way of secondary relief, sought in the
alternative to the aforementioned primary relief, and contingently
upon the court upholding
the Department’s understanding of the
statutory scheme, the applicants sought a declaration that the
Alteration Act and/or
the Marriage Act and/or the
Civil Union Act
is/a
re inconsistent with the Constitution and invalid to the extent
that any or all of them fail to allow the alteration of a person’s

sex description and sex status while that person is in a marriage
that was solemnised under the Marriage Act.  Various forms
of
other relief ancillary to any such declaration were also sought.
[59]
The applicants have sought certain of the
relief not only in their own interest, but also, in terms of s 38
of the Constitution,
in the interest of all other couples who find
themselves in a similar situation.
The
respondents’ case
[60]
The respondents opposed the application.
The Director-General of the Department of Home Affairs deposed to an
answering affidavit
on behalf of all three respondents
[44]
.
He averred that ‘
the issues
presented in this application are novel and have not been previously
canvassed by the Department prior to them having
been raised by GDX
in its engagement with the Department
’.
He proceeded ‘[t]
his matter
squarely raises an intersectional debate of issues related to
same-sex relationships, marriage and sex alteration
’.
[61]
The respondents contend that there is a gap
in the existing legislation that needs to be filled if the
applicants’ complaints
are to be effectively addressed. They
aver that the effect of the statutory framework currently in place is
the following (I quote
from paragraph 13 of the answering affidavit):
1.
Once
a partner to a marriage undergoes a sex alteration (thereby
converting the relationship into a same-sex one), such a relationship

does not constitute a marriage under the Marriage Act.
2.
However,
the law provides no mechanism by which to convert such a marriage
concluded under the Marriage Act into a marriage under
the
Civil
Union Act or
indeed to provide grounds upon which such a couple may
divorce (it being accepted that the grounds for divorce under the
Divorce Act do
not apply on the facts of
[the
current]
matters.
3.
The
result is that such a couple remains married under the Marriage Act,
but that their sex alteration cannot be registered as contemplated

under the Alteration Act.
4.
This
state of affairs results in persons who are in marriages concluded
under the Marriage Act (and who were at the time of concluding
such
marriages in heterosexual relationships) being deprived of
(sic)
registering a sex alteration under the
Alteration Act.
[62]
The respondents accept that there is
nothing in the Alteration Act, read on its own, to support the notion
that an applicant’s
marital status has any bearing on his or
her entitlement to obtain an altered birth certificate under that
Act.  They contend,
however, ‘
that
the issues presented in this matter cannot be viewed in isolation
solely through the lens of the Alteration Act
’.
‘
Equally important
’,
they say’ ‘
are the
implications of an alteration under the Alteration Act for the
Marriage Act
’.  They argue
that the current matter involves ‘
a
question
of
[?marital]
status
’.
The respondents say it is also ‘
a
matter that touches on deep public and private sensibilities which
[they]
aver
Parliament is well-suited to finding the best ways to vindicate
’.
[63]
The respondents assert that they ‘
do
not accept the correctness of an argument seemingly advanced by the
applicants that even though the Marriage Act does not allow
for the
conclusion
of a same-sex marriage, it does allow for and apply to a marriage
that was concluded as heterosexual and
subsequently
became
same-sex
’.
They point out that after the judgment in the
Equality
Project
case the Department ‘
gave
careful consideration to the question whether the Marriage Act should
be amended to make it applicable to same-sex marriages.
There
was extensive and wide ranging objection, inter alia from the
religious sector to follow such a course; the
Civil Union Act was
accordingly opted for
’,
(Underlining in the original.)  They contend that in the result
there is a ‘
parallel regime of the
law governing marriage
’.
[64]
The essence of the respondents’
contentions is that the first to sixth applicants are the victims of
a legislative conundrum.
They accept that on their approach the
resultant situation would impel a finding that some (unspecified) law
or conduct involved
was inconsistent with the Constitution, and that
a declaration in terms of s 172(1)(a) of the Constitution would
be indicated.
The Director-General averred that ‘
the
respondents have no objection to an order declaring that the
Civil
Union Act is
unconstitutional for its failure to recognise as a valid
marriage (either in its own right or by converting a marriage
concluded
under the Marriage Act), the marriage of two persons who
were married as a heterosexual couple under the Marriage Act, and
where,
subsequent to such marriage, one person to that marriage
registers a sex alteration on the Birth Register pursuant to the
alteration
Act
’.  Elsewhere
in the answering affidavit the Director-General postulates that the
conundrum might also be addressed by
amendments to Alteration
Act,
[45]
or the Marriage Act.
[46]
[65]
The respondents averred that while they
‘
accept that the vindication of
rights or indeed the addressing of legislative lacuna
[e]
are not dependent on public opinion, …
the value of a public consultative process cannot be underestimated.
They stressed that the Department was
‘
mindful of the widespread and
extensive public opposition to an amendment of the Marriage Act’
which had ‘…
largely
informed Parliament’s decision to adopt the
Civil Union Act (as
opposed to amending the Marriage Act), in order to give effect to the
Order of the Constitutional Court in
[the
Equality Project
case]’.
[66]
The Director-General sought to explain the
advice given by departmental officials to four of the applicants that
they should obtain
a divorce and remarry under the
Civil Union Act as
having been premised on the notion that ‘
under
the current legislative framework a person in a same-sex relationship
cannot conclude
or remain in a
marriage
under the Marriage
Act
’.  (My underlining.)
He summed up this explanation with the statement ‘
I
accept that is indeed correct as a matter of law
’.
[67]
The Director-General’s response to
the deletion by the Department of the record of WJV’s marriage
was, however, entirely
inconsistent with his notion that a person in
a same-sex relationship ‘
cannot
remain in a marriage under the Marriage Act
’.
He said that the registration of the alteration of WJV’s
sex/gender in terms of the Alteration Act and the
attendant deletion
of the registration of his and the sixth applicant’s marriage
had been ‘a mistake’.
He reiterated his
understanding that the ‘
legislative
framework … does not simultaneously allow for a person married
under the Marriage Act who has undergone a sex
alteration to have
their sex alteration registered on the system while simultaneously
allowing such a person to remain married
under the Marriage Act; this
is because the result of the sex alteration would be that that person
would be in a same sex relationship,
which is not permitted under the
Marriage Act
’.
Discussion
[68]
I have described the Director-General’s
reasoning as ‘inconsistent’ because he tendered to
restore the registration
of the marriage of WJV and the sixth
respondent on the system, subject to the simultaneous reversal of the
recordal of WJV’s
sex/gender change under the Alteration Act.
In other words, notwithstanding his averment that a couple that have
become a
same-sex couple as a result of one of them transitioning
cannot ‘
remain married under the
Marriage Act’
, he is nevertheless
willing to restore the registration of WJV and the sixth applicant’s
marriage.  And he clearly does
not have mind deeming it a
marriage under the
Civil Union Act.  What
he is apparently
content to tolerate is an inaccurate population register and a
continuing breach by WJV of the obligation under
the
Identification
Act to
obtain a replacement identity card by reason of her altered
circumstances.
[69]
This highlights, I think, the confusion
that appears to exist in the minds of the respondents and officialdom
in the Department
concerning the import and effect of the relevant
legislation.  I regret to say that their approach appears to
have been coloured
by the persisting influence of the religious and
social prejudice against the recognition of same-sex unions
[47]
that, according to their evidence, was accommodated by the decision
not to amend the Marriage Act but to bring in the
Civil Union Act
alongside
it instead.  They have not identified a single
provision in any of the legislation to which they refer that
expressly forbids
the processing and positive determination of the
transgender spouses’ applications under the Alteration Act.
All that
they have been able to point to are the socio-religious
objections that reportedly influenced the legislature’s
decision
to introduce the
Civil Union Act and
leave the Marriage Act
unamended.  They do not explain why those considerations should,
or properly could, weigh to distort
the plain meaning of the
enactments as they appear in the statute book.
[70]
What is also strikingly absent from the
respondents’ answer is any acknowledgment of the expressly
enshrined constitutional
principle that statutes must be interpreted
in a manner consistent with the promotion of the spirit, purport and
object of the
Bill of Rights.  Although s 39(2) of the
Constitution places the interpretative duty on adjudicative bodies
such as courts
and tribunals, the provision necessarily implies that
organs of state charged with administering legislation are expected
to do
so consistently with the meaning which the courts are called
upon to give it.  Organs of state fulfil that obligation by
complying
with s 7(2) of the Constitution, which obliges the
state ‘
to respect, protect,
promote and fulfil the rights in the Bill of Rights
’.
The manner in which the applications by the transgender spouses were
treated manifests a regrettable lack of compliance
by the Department
with its constitutional obligations in a number of respects.
[71]
Furthermore, had there indeed been a
serious concern that there was a gap in the legislation that required
to be addressed in order
to meet what the respondents admit has been
the unconstitutional treatment of the first to sixth applicants (and
others like them
whose rights have been advocated by the seventh
applicant), one would have hoped that the Department would by now be
able to show
that it had conscientiously engaged with the issues.
Section 237 of the Constitution enjoins that all
constitutional
obligations must be performed diligently and without
delay.  It is regrettable, having regard to history, that at
this late
stage the Department has not formulated concrete proposals
in respect of the supplementary provisions it contends are needed,
and
that it reports that it should be afforded a period of 24 months
from the date of any order the court may make in terms of s 172(1)(a)

of the Constitution to remedy the situation.
[48]
Proper
construction of the pertinent legislation
[72]
I turn now to consider whether the
respondents’ argument that there is a lacuna in the legislation
can be sustained upon a
proper construction of the extant laws.
[73]
As mentioned, the respondents concede that
there is nothing in the Alteration Act itself that expressly or
impliedly indicates that
the applicant’s marital status has any
bearing on the ability or entitlement of a person who has
transitioned to obtain administrative
relief under the provisions of
the statute.  The object of the Act is reflected in its long
title, which is ‘[An Act]:
To
provide for the alteration of the sex description of certain
individuals in certain circumstances; and to amend the
Births and
Deaths Registration Act, 1992
, as a consequence; and to provide for
matters incidental thereto
’. The
sole criterion for obtaining an altered birth certificate under the
Act is proof, in the form prescribed by s 2(2),
to the
reasonable satisfaction of the Director-General, that the applicant
has altered his or her sex/gender.  The Alteration
Act therefore
does not contain anything to support the respondents’
interpretation of the statutory framework.
[74]
I have already described the administrative
consequences of an altered birth registration in terms of the
Alteration Act.
[49]
The consequences are plainly directed towards facilitating the
maintenance of an accurate and meaningfully informative population

register.  As I have highlighted, the failure by a person who
has transitioned to obtain a replacement identity card is a
criminal
offence under the
Identification Act.  Such
a person can obtain
a replacement card only after going through the process provided in
terms of the Alteration Act.  The
purpose of the
Identification
Act, as
reflected in its long title is ‘[t]
o
provide for the compilation and maintenance of a population register
in respect of the population of the Republic; for the issue
of
identity cards and certain certificates to persons whose particulars
are included in the population register; and for matters
connected
therewith
’.  The evident
purpose of the population register is to provide generally for a
database to be used to assist in matters
of public administration.
The content of the population register is not publically available
and it may be accessed only
with the specific consent of the
Director-General.
[50]
This confirms the primarily governmental purpose of the register.
Similarly, the particulars recorded in the population
register
may be amended only with the consent of the Director-General.
[51]
[75]
The public working of the register is
manifested by its system of identity cards.  The purpose of
identity cards is to combat
fraud in both the public and private
sectors, and to assist in law administration and enforcement.  A
person’s marital
status does not impact on the formulation of
his or her allocated identity number in terms of s 7 of the
Act.  On the
contrary, the indication of any personal
particulars apart from the person’s date of birth, gender and
citizenship status
is expressly precluded from inclusion in their
identity number.
[52]
Many of life’s ordinary undertakings such as travel, legally
driving a motor vehicle, or opening a banking account
require every
South African resident to carry one or more of the various types of
identity card recognised in terms of the
Identification Act.  As
the practical experience of the transgender spouses testifies,
identity cards do not serve those purposes well if they do not
accurately reflect the actual identity of the cardholder as he/or she
would present in ordinary circumstances to the outside world.

It will not help if anyone whose sex/gender characteristics have been
altered from male to female is forced to keep a card showing
their
original sex/gender with a photograph depicting them as a person of
the opposite sex to that which they actually appear to
be. Having
regard to the objects of the
Identification Act, no conceivable
purpose could be served by maintaining an inaccurate record of the
particulars of any individual.  On the contrary, to do
so would
thwart the effective operation of the Act and impede the exercise of
personal rights and freedoms.
[76]
I have already referred to the provisions
of
s 8(e)
of the
Identification Act.
[53
]
In the case of the first to sixth applicants, it has the effect
that the particulars of their respective marriages on the
relevant
marriage registers must be recorded on the population register.
That will be so even if the marriages are subsequently
terminated.
The second respondent is obliged to supplement the information so
recorded on the population register with any
‘
such
other particulars concerning
[a
person’s]
marital status as may be
furnished to the Director-General
’.
Information concerning the termination of a marriage would be an
obvious example of ‘
such other
particulars
’.  The
particulars of a divorce order would fall to be added to the
information on the register concerning the person’s
marital
status.  The respondents concede that the first to sixth
applicants’ marriages, remain valid notwithstanding
the actual
change of sex/gender of one of the parties thereto, and that they can
be terminated only by death or divorce.
It is not apparent to
me why information concerning an alteration of sex/gender - something
that does not affect the subsistence
or legal effect of a recorded
marriage - would constitute particulars falling to be recorded under
s 8(e)
of the
Identification Act.  All
that would be
required is an amendment of the particulars recorded in respect of
the person’s gender in terms of
s 8(b).
[77]
When regard is had to the close and direct
inter-relationship between the workings of the Alteration Act and the
Identification Act
- both of which are administered by the Ministry
of Home Affairs - it is perplexing that the respondents omitted to
deal with this
most directly practical aspect of the legislation in
their answering papers.  Indeed, they made no mention of the
Identification Act in
their answering papers whatsoever, or of the
effect on its administration of the ‘lacuna’ they would
seek to identify
in the relevant statutory framework.
[54]
It is obvious that the practical inter-relationship between the
Alteration Act and the
Identification Act for
the purposes of
government administration is immediate and real.  The nature of
its alleged ‘intersectional’ relationship
with the
Marriage Act or the
Civil Union Act on
the other hand has proved
difficult for the respondents to pinpoint, unsurprisingly.
[78]
The problem with the implementation of the
Alteration Act that the respondents have sought to identify seems to
arise from their
understanding of the Marriage Act and the
Civil
Union Act.
[79
]
The object of the Marriage Act appears from
its long title.  It is ‘[t]
o
consolidate and amend the laws relating to the
solemnization
of marriages and matters incidental thereto
’.
(Underlining supplied for emphasis).  It is unnecessary to
analyse the content of the Act in detail.  The
‘matters
incidental’ to the solemnisation of marriages with which it
deals are the appointment and authority of marriage
officers; the
formalities that must be observed before a marriage can be
solemnised, and what must be done by the marriage officer
if
objections are raised to a proposed marriage; the circumstances in
which a marriage between two minors without parental or guardian

consent may be dissolved; the prohibition of the marriage of boys
under 18 and girls under 15 without ministerial permission;
permitting the marriage of certain persons connected by affinity by
virtue of previous marriages; and providing when and where marriages

may be solemnised and for the presence thereat of at least two
competent witnesses.
[80]
The difficulties that the respondent rely
on appear to lie in ss 29A and 30(1) of the Marriage Act.
[81]
Section 30(1) of the Act provides for the
marriage formula to be used in the solemnisation ceremony.  As
discussed earlier,
[55]
this is the provision that was centrally under consideration in the
Equality Project
case, which, because it has been left unamended by the legislature,
continues to have the effect of precluding same-sex couples
from
having their partnerships solemnised under the Marriage Act.
‘
Solemnisation
’
is a noun derived from the verb form ‘
solemnise
’,
which means ‘
duly perform (a
ceremony, especially that of marriage) › mark with a formal
ceremony
’.
[56]
That is what s 30(1) is concerned with.  It does not bear
on the consequences of any marriage solemnised in terms
of its
provisions.  Indeed, as mentioned earlier, the Act does not
contain any provision concerning
the
consequences
of a marriage solemnised
under its auspices.  On the contrary, it is common ground that
those are determined by the common
law and are indistinguishable from
those of a marriage or civil partnership solemnised under the
Civil
Union Act.
[82
]
The Marriage Act, moreover, does not
contain anything prohibiting a party to a marriage duly solemnised in
terms of the formula
prescribed in s 30(1) from undergoing a
sex-change or obtaining an altered birth certificate in terms of the
Alteration Act.
Any provision that had such an effect would,
for a number of reasons, be of very doubtful constitutional
validity.  It would
probably be found to offend against the
basic rights of everyone to equality because it would be likely to
unfairly discriminate
against affected parties on one or more of the
grounds set out in s 9(3) of the Bill of Rights and also to
unjustifiably infringe
the right that everyone has to bodily and
psychological integrity, including the right to security in and
control over their body
(s 12(2)(b) of the Bill of Rights).
There being no express provision in the Marriage Act having the
effect contended
for by the respondents, why should one be imputed?
For the reasons canvassed earlier, it would be against constitutional
principle to interpret or apply the express provisions of the
Marriage Act in a manner that would undermine, rather than promote

the spirit, purport and objects of the Bill of Rights.  For all
these reasons I am unable to find a cognisable basis in the
facts of
this case for interconnecting s 30(1) of the Marriage Act with
the implementation of the Alteration Act.
[83]
Section 29A of the Marriage Act prescribes
the registration of a marriage solemnised under the Act:  It
provides:
Registration of marriages
(1) The marriage officer solemnizing any marriage, the
parties thereto and two competent witnesses shall sign the marriage
register
concerned immediately after such marriage has been
solemnized.
(2) The marriage officer shall
forthwith transmit the marriage register and records concerned, as
the case may be, to a regional
or district representative designated
as such under section 21 (1) of the Identification Act, 1986 (Act 72
of 1986)
[57]
The
only legal and practical effect of registration in terms of s 29A
is to create an official record of the
solemnisation
of the
marriage in terms of the Act as an historical fact.  I have
already discussed the consequential significance of the
registration
for the workings of the Identification Act.  Registration is a
matter of record keeping; it has no more bearing
than s 30 does
on the legal consequences of the marriage.
[84]
The respondents’ counsel drew
attention to the fact that the marriage certificate and other
official forms provided for in
terms of the regulations made under
the Marriage Act identify the parties as ‘husband’ and
‘wife’, and
raised this as presenting a practical
difficulty should either of the parties subsequently change their
sex/gender.  If there
is a difficulty, I fail to see why the
Minister should not be able to address it by exercising her
regulatory powers in terms s 38(1)(a)
of the Act to make
provision for an appropriate form to cater for any required
amendments to the official records or registers.
There is
nothing in the Act that prohibits the amendment of records to take
account of subsequent name and/or sex/gender details
of persons whose
marriages were duly solemnised under the statute.  The Minister
cannot rely on any shortcomings in the regulatory
record-keeping
mechanisms of the Marriage Act to deny transgendered persons their
substantive rights under the Alteration Act,
or to frustrate the
substantive requirements of the Identification Act.  Apart from
any other considerations, to do so would
be to act inconsistently
with her obligations in respect of the provision of effective and
coherent government.
[58]
[85]
Turning to the
Civil Union Act.  Its
objects are expressed in the long title, which is repeated in
s 2
of the statute, s.v. ‘
Objective of
Act
’, namely, ‘
(a) to
regulate the solemnisation and registration of civil unions, by way
of either a marriage or a civil partnership; and
(b) to provide
for the legal consequences of the solemnisation and registration of
civil unions
’.  Apart from
its provision of a gender neutral marriage formula, there are no
pertinent differences between the prescribed
formalities in respect
of the solemnisation of marriages under the
Civil Union Act and
those
under the Marriage Act.  Unlike the Marriage Act, the
Civil
Union Act deals
with the legal consequences of the unions that are
solemnised under its auspices. As mentioned, it does so by providing
that the
legal consequences are the same ‘
with
such changes as may be required by the context
’
as those of a marriage solemnised in terms of the Marriage Act.
[59]
As discussed, both acts treat marriage as ‘a union of
two
persons
, to the exclusion, while it
lasts, of all others’.  There is thus no parallel system
of civil marriage, as contended
by the respondents; there is only a
parallel system for the solemnisation of marriages.  The notion
propounded by the respondents
that there is scope for a ‘conversion’
from one type of duly solemnised marriage to another has accordingly
been advanced
on a false premise.
[86]
Furthermore, the development of our common
law of marriage and the associated enactment of legislation enabling
the formalisation
of same-sex marriage has meant that the difficult
socio-political issues identified by the House of Lords as standing
in the way
of its ability to come to the assistance of Mrs
Bellinger,
[60]
and requiring the attention of Parliament, do not preclude a positive
outcome of the application for the applicants in this case.
[61]
Conclusion
[87]
The applicants are entitled in the
circumstances to the primary relief for which they have applied.
The failure of the Director-General
to decide the applications of KOS
and GNC under the Alteration Act, alternatively, his effective
refusal of their applications
amounted to ‘administrative
action’ within the meaning of PAJA, and therefore fell, in
terms of the principle of subsidiarity,
to be challenged in terms of
the provisions of that statute.  The proceedings were instituted
outside the time limit prescribed
in terms of s 7 of PAJA and
can be entertained only if an extension of time is granted in terms
of s 9 of the Act.
As mentioned, the applicants have
applied for such an extension.  The respondents, quite properly
in the circumstances, have
not opposed the application for an
extension of time.  The application raises important issues that
bear materially on the
lives of a section of South African society
and on matters of public administration.  It would therefore be
in the interests
of justice that the required extension should be
granted.  The context also makes it appropriate, to the extent
necessary,
to exempt the first to sixth applicants from having to
exhaust the internal remedies under the Alteration Act.
[88]
It is not clear to me that the Department’s
deletion of the record of the marriage between WJV and the attendant
unilateral
change of the sixth applicant’s surname back to her
maiden name is ‘administrative action’.  The action
was not taken in terms of any law.  It was clearly unlawful and
falls to be set aside for being in breach of the doctrine of

legality.  Lest I should be thought to be wrong in this
approach, however, I shall contingently, to the extent that may then

be necessary, also grant relief in terms of s 9 of PAJA in
respect of the challenge mounted against those actions.
[89]
The applicants sought an order declaring
that the second respondent ‘
does
not have the power to delete a marriage from the Population Register,
or to alter a spouse’s surname because one spouse
has
successfully applied for an alteration of their sex descriptor in
terms of the
[Alteration Act]’.
I am not persuaded that making such an order would be appropriate.
The respondents have conceded
that the second respondent has no such
power and have explained that what happened in connection with WJV’s
application under
the Alteration Act was ‘a mistake’.
Similarly, I do not think it to be necessary or appropriate to make
an order
declaring that the first to sixth applicants’
respective marriages are valid marriages in terms of the Marriage
Act.
It was common cause on the papers that the marriages were
valid.  The statement by the second respondent that such
marriages
could not continue to exist if one of the spouses altered
his or sex was uttered in the context of his confused and
contradictory
attempts to explain the Department’s
understanding of the ‘intersectional’ effect of the
Alteration Act, the
Marriage Act and the
Civil Union Act.  I
consider that the declaratory orders that will be made will
adequately address those aspects.
Orders
[90]
The following relief is granted:
1.
It
is declared, in terms of s 172(1)(a) of the Constitution, that
the manner in which the Department of Home Affairs dealt
with the
applications by the first, third and fifth applicants under the
Alteration of Sex Description and Sex Status Act 49 of
2003 (‘the
Alteration Act’) was conduct inconsistent with the Constitution
and unlawful in that it
(a)
infringed the said applicants’ right
to administrative justice;
(b)
infringed the said applicants’ rights
and those of the second, fourth and sixth applicants to equality and
human dignity;
and
(c)
was inconsistent with the State’s
obligations in terms of s 7(2) of the Constitution
2.
It
is further declared that the second respondent is authorised and
obliged to determine applications submitted in terms of the

Alteration Act by any person whose sexual characteristics have been
altered by surgical or medical treatment or by evolvement through

natural development resulting in gender reassignment, or any person
who is intersexed, for the alteration of the sex description
on such
person’s birth register irrespective of the person’s
marital status and, in particular, irrespective of whether
that
person’s marriage or civil partnership (if any) was solemnised
under the Marriage Act 25 of 1961 or the
Civil Union Act 17 of 2006
3.
An
order is made in terms of section 9 of the Promotion of
Administrative Justice Act 3 of 2000 (‘PAJA’) extending
the period within which the first to sixth applicants were permitted
to commence proceedings for the judicial review of the second

respondent’s determination of, alternatively failure to
determine, the respective applications submitted by the first, third

and fifth applicants in terms of the Alteration Act to the date upon
which the current application was instituted.
4.
Insofar
as might be necessary, an order is made in terms of section 7(2)(c)
of PAJA exempting the first, third and fifth applicants
from
exhausting the internal remedies provided under the Alteration Act.
5.
The
second respondent’s rejection of, alternatively failure to
decide, the applications by the first and third respondents
in terms
of the Alteration Act is reviewed and set aside; and the second
respondent is hereby directed to reconsider and, within
30 days of
the date of this order, determine those applications in accordance
with the provisions of the Alteration Act construed
in the light of
this judgment.
6.
It
is declared that the deletion by the Department of Home Affairs of
the particulars in the population register compiled and maintained
by
the Department in terms of the Identification Act 68 of 1997 in
respect of the marriage between the fifth and sixth applicants
in
terms of the Marriage Act, 1961, was unlawful; and the second
respondent is hereby directed to, within 30 days of the date of
this
order, unconditionally, and without derogation from his approval of
the fifth applicant’s application in terms of the
Alteration
Act, reinstate on the register the record of the particulars of the
solemnisation of the said marriage in terms of the
Marriage Act.
7.
The
first respondent is directed to pay the applicants’ costs of
suit, including the costs of two counsel.
A.G. BINNS-WARD
Judge of the High Court
APPEARANCES
Applicants’
counsel:
N.
Bawa SC
M. Bishop
E. Webber
Applicants’
attorneys:
Legal
Resources Centre
(Cape Town and Johannesburg)
Respondents’
counsel:
K. Pillay
T. Mayosi
Respondents’
attorneys:
State Attorney
Cape Town
[1]
At the commencement of the hearing
in open court I made an order, as sought in terms of paragraph 20 of
the notice of motion,
‘
Permitting
the Applicants to:
1. Use the First to Sixth Applicants’ initials
instead of their full names on all court documents filed that will
be available
to the public.
2. File and provide to the
respondents a confidential affidavit that contains the First to
Sixth Applicants’ full names
and unredacted versions of the
annexures … that will not be made publically available
’
.
The
respondents did not oppose the making of the order. I granted it
because I considered that it would be just and equitable
in the
circumstances.  It serves to protect the affected applicants’
rights to human dignity and privacy, whilst not
unduly limiting the
operation of the freedom of expression rights under s 16 of the
Bill of Rights.  However, it was
inappropriate for the
applicants to have moved for the relief only when the application
was called in open court.  The public
is entitled to uncensored
access to any documents filed at court in pending litigious matters
unless a court for good reason
directs otherwise; see
Cape Town
City v South African National Roads Authority and Others
2015
(3) SA 386
(SCA),
[2015] ZASCA 58.
I consider that in the
circumstances the applicants should have applied
ex parte
in
preliminary proceedings, possibly through the chamber book, for
permission to file redacted papers upon the institution of
the
current application.  It would have been appropriate to grant
them such relief, subject to the right of any third party
which
considered itself prejudiced thereby to approach the court, on
notice to the applicants, for the amendment or rescission
of the
order.
[2]
The term ‘
sexual
characteristics
’
is taken from the
Alteration
Act, in which it is defined as meaning ‘
primary
or secondary sexual characteristics or gender characteristics
’.
According to the Act’s definition provisions ‘
Primary
sexual characteristics
’
denotes ‘
the
form of the genitalia at birth
’;
‘
secondary
sexual characteristics
’
means ‘
those
which develop throughout life and which are dependant
(sic)
upon the hormonal
base of the individual person
’
and ‘
gender
characteristics
’
are ‘
the ways
in which a person expresses his or her social identity as a member
of a particular sex by using style of dressing, the
wearing of
prostheses or other means
’.
[3]
Dysphoria is a term used in psychiatry. It is defined
in the Concise Oxford English Dictionary 10th ed. (revised)
(2002),
as ‘
Psychiatry
a state of unease or general dissatisfaction’.
[4]
To ‘
transition
’
in the relevant context means to ‘
adopt
permanently the outward or physical characteristics of the gender
one identifies with, as opposed to those associated with
one’s
birth sex
’.
See the
Oxford
Dictionary of English
(Online
version 2.2.1, Copyright © 2005–2016 Apple Inc.).
[5]
In
National
Legal Services Authority v Union of India and others
AIR 2014 SC 1863
, at para. 76, the Supreme Court of India (per
K.S. Rahdakrishnan J) acknowledged that ‘
Gender
identity … forms the core of one’s personal self, based
on self identification, not on surgical or medical
procedure
’.
In
Bellinger v
Bellinger
[2003] 2
All ER 593
(HL),
[2003] UKHL 21
,
[2003] 2 AC 467
, at para. 5, Lord
Nicholls of Birkenhead, describing various ‘
indicia
of human sex or gender
’,
identified ‘
self-perception
’
as one of them, and remarked ‘
Some
medical research has suggested that this factor is not exclusively
psychological. Rather, it is associated with biological

differentiation within the brain. The research has been very
limited, and in the present state of neuroscience the existence
of
such an association remains speculative
’.
[6]
Section 3(1) of the Alteration Act
read with
s 27A
of the
Births and Deaths Registration Act 51 of
1992
.
[7]
Section 3(2) of the Alteration Act.
[8]
See the discussion in June D Sinclair (assisted by
Jacqueline Heaton),
The Law of Marriage
,
(Juta, 1996) vol. 1, at pp.311-312; and the description in the
Equality Project
judgment,
at para 63, of marriage under the common law, before its recent
development, as constituting ‘
a highly
personal and private contract between a man and a woman in which the
parties undertake to live together, and to support
one another.
Yet the words “I do” bring the most intense private and
voluntary commitment into the most public,
law-governed and
State-regulated domain
’.
[9]
Section 5 provides insofar as
relevant:
(1) The Director-General shall be the custodian of
all-
(a) documents relating to births and deaths required
to be furnished under this Act or any other law; and
(b) …
(2) Particulars obtained from the documents referred
to in subsection (1) (a) shall be included in the population
register and
such inclusion is the registration of the births and
deaths concerned.
[10]
The word ‘
gender
’
is used in the Identification Act to the same effect as the
expression ‘
sex
description’
is in the Alteration Act.  Sex/gender classification in terms
of the Identification Act currently operates on a binary model.

Everyone is either male or female.  Thamar Klein points out
that, by contrast, ‘
Australia,
India, Nepal, New Zealand, and Pakistan, for example, all offer an
additional legal sex/gender identification option
,
besides those of female and male, to citizens
who identify themselves as otherwise. Australia and New Zealand
offer “X”
besides “M” and “F” as
sex/gender identification on passports, India has included
“transgender”
in the government citizen ID number
system, and Pakistan uses the term “unix” on the
national identity cards of transgendered
individuals, whereas Nepal has incorporated the category “other”
for official
identity documents. In all cases, intersexed as well as
gender-variant people may apply for these options.
’
(T. Klein,
‘
Who
Decides Whose Gender? Medico-legal classifications of sex and gender
and their impact on transgendered South Africans’
family
rights
’,
(2012) 14(2)
Ethnoscripts
12-34 (Universität Hamburg), at pp. 22-23.)  While
judgment in this matter was in the course of preparation it was

announced in the news media that Canada also intends issuing
‘X’-designated
gender neutral
passports and other identity documents to citizens who identify as
being neither male nor female.
[11]
Section 8(e) of the Identification
Act.
[12]
Section 7 of the Identification Act.
[13]
Section 19 read with chapters 4 and
5 of the Identification Act.
[14]
See ss 9 and 15(2) of the
Identification Act.
[15]
Section 17(3) of the Identification
Act provides that an ‘
authorised
officer
’ for
the purposes of s 17(1) ‘
means-
(a) a peace officer as defined in section 1 of the Criminal
Procedure Act, 1977 (
Act
51 of 1977
);
or (b) a person, or a member of a category of persons,
designated by the Minister by notice in the Gazette, and who

for the purpose of this section shall be deemed to be such a peace
officer
’
.
[16]
In terms of s 17(4) of the Identification Act.
[17]
Annulment, by contrast, implies that there never was a
valid marriage.
[18]
2006 (1) SA 524
(CC),
2006 (3) BCLR
355
,
[2005] ZACC 19.
[19]
Section 30(1) of the Marriage Act
provides:
In solemnizing any marriage any marriage officer
designated under section 3 may follow the marriage formula usually
observed by
his religious denomination or organization if such
marriage formula has been approved by the Minister, but if such
marriage formula
has not been approved by the Minister, or in the
case of any other marriage officer, the marriage officer concerned
shall put
the following questions to each of the parties separately,
each of whom shall reply thereto in the affirmative:
‘
Do you, A.B., declare that
as far as you know there is no lawful impediment to your proposed
marriage with C.D. here present,
and that you call all here present
to witness that you take C.D. as
your
lawful wife (or husband)
?’,
and thereupon the parties shall give each other the
right hand and the marriage officer concerned shall declare the
marriage solemnized
in the following words:
‘
I declare that A.B. and
C.D. here present have been lawfully married’.
(Bold
print supplied for emphasis.)
[20]
The applicants did allege that if the respondents were
correct in their construction of the applicable legislation, the
resultant
discriminatory treatment in distinguishing between persons
married under the Marriage Act and those wed under the
Civil Union
Act would
, in effect, give rise to unfair discrimination on the
basis of sexual orientation.  In view of the conclusion to
which I
have come it has not been necessary to decide that point.
The contention seems in any event to be based on the very sort
of
conflation of concepts that has been criticised in the academic
literature.
[21]
Bellinger v Bellinger
supra at note 5, in para. 10.
[22]
A short but useful overview on the
subject is given in
Victor,
Victoria or V? A constitutional perspective on transsexuality and
transgenderism
(C.
Visser and E. Piccara),
2012 SAJHR 506.
The authors observe
that ‘
The
labels of transsexual, transgenderist, intersexed, transvestite,
heterosexual, homosexual, bisexual and pansexual are all
labels that
are used in an attempt to describe the many permutations of human
identity and sexuality. However, the conflation
of sex, gender and
sexual orientation has tainted our understanding of what these terms
actually mean, leading to the perpetuation
of misconceptions that
have impacted on the legal treatment of transsexual and transgender
issues. At the outset, a distinction
has to be drawn between those
terms that refer to the sexual orientation of an individual; those
that have their application
in reference to the biological sex of an
individual; and those that describe the gender configuration of the
individual
’
(at pp. 510-511).  Albertyn and Goldblatt say that the
‘
Constitutional
Court tends to use sex and gender interchangeably in the relatively
large number of cases it has considered on
these grounds.  Sex
is generally taken to mean the biological differences between men
and women, while gender is the term
used to describe the socially
and culturally constructed differences between men and women
.’
(C. Albertyn and B Goldblatt, ‘
Equality
’,
in S. Woolman and M. Bishop (eds.)
Constitutional
Law of South Africa
2
nd
ed, at 35-55.)
[23]
[1970] 2 All ER 33
(P.D.A.), at p. 48.
[24]
For an insight into how ‘conservative’
submissions on the draft bills affected the enactment of the
Civil
Union Act and
the decision not to amend the Marriage Act, see P. de
Vos and J. Barnard,
Same-sex marriage, civil
unions and domestic partnerships in South Africa: critical
reflections on an ongoing saga
2007 (124)
SALJ 795.
[25]
Cossey v. The United Kingdom
[1990]
ECHR 21
,
(1991) 13 EHRR 622
,
at
para.  4.5.2.
[26]
Cf. Sinclair
The Law of
Marriage
, op cit supra (at note 8),
especially s.v ‘
The Marriage
Relationship, (a) Consortium Omnis Vitae
’
at pp. 422-424.
[27]
In
Equality
Project
, at
para. 3, Sachs J noted that ‘
[t]
he
common law
[in respect of marriage]
is
not self-enforcing, and in order for such a union to be formalised
and have legal effect, the provisions of the Marriage Act
have to be
invoked
’.
[28]
See
s 13
of the
Civil Union Act
quoted
in note 34
below.
[29]
In paragraph [19]
above.
[30]
See the highlighted words of the
provision quoted in note 19
above.
[31]
The applicants’ counsel had
argued in their heads of argument that same-sex marriage was
possible under the Marriage Act
through ‘
an
approved marriage formula
’.
The submission was no doubt based on the opinion to that effect
expressed in the majority judgment in
Fourie
and Another v Minister of Home Affairs
2005 (3) SA 429
(SCA), at paras. 35-37.  The subsequent
introduction of
Civil Union Act called
the feasibility of that
approach into question.
I
am not aware whether there has yet been a case raising the
interesting question whether an intended marriage in which one of

the parties has already transitioned can be solemnised under the
Marriage Act.  The respondents’ answering affidavit

posits a positive answer.  The second respondent averred ‘
Had
a partner to a relationship undergone a sex alteration
prior
to
marriage
and had such a marriage resulted in them entering into a
heterosexual relationship, such couples
(sic)
would have
been entitled to marry their respective partners under the Marriage
Act
’.
(Underlining in the original.)  The respondents’ position
in this respect is somewhat ironic in the
context of the importance
they attach in other respects to the public’s ‘sensibilities’
about any amendment
to the Marriage Act.
[32]
Parliament sought to correct the
defect identified in s 30(1) of the Marriage Act by providing
the following formula in
s 11(2)
of the
Civil Union Act to
be
used in the solemnisation of unions under the latter Act:
In solemnising any civil union,
the marriage
officer
must put the following questions to each of the parties
separately, and each of the parties must reply thereto in the
affirmative:
‘
Do you, A.B., declare that
as far as you know there is no lawful impediment
to
your proposed marriage
/civil
partnership with C.D. here present, and that you call all here
present to witness that you take C.D. as
your
lawful spouse
/civil
partner?’,
and thereupon the parties must give each other the
right hand and
the marriage officer
concerned must declare
the marriage or civil partnership, as the case may be, solemnised in
the following words:
‘
I declare that A.B. and
C.D. here present
have
been lawfully joined in a marriage
/civil
partnership.’
(Emphasis
supplied for highlighting.)
The
formula is plainly based on that in s 30(1) of the Marriage Act
quoted in note 19
above.
The only material difference is the use of the words ‘
your
lawful spouse/civil partner
’
instead of ‘
your
lawful wife (or husband)
’.
[33]
Section 11(1)
of the
Civil Union Act.
[34
]
This follows from
s 13
of the
Civil Union Act, which
provides:
Legal consequences of civil union
(1) The legal consequences of a marriage
contemplated in the Marriage Act apply, with such changes as may be
required by the context,
to a civil union.
(2) With the exception of the Marriage Act and the
Customary Marriages Act, any reference to-
(a)    marriage in any other law,
including the common law, includes, with such changes as may be
required by the
context, a civil union; and
(b)    husband, wife or spouse in any
other law, including the common law, includes a civil union partner.
[35]
Provided that they are both over 18 (see the definition
of ‘
civil union
’
in
s 1
of the
Civil Union Act).
[36
]
Paragraph (a) of the definition of ‘marriage
officer’ in the
Civil Union Act provides
that the term means
‘
a marriage
officer
ex
officio
or
so designated by virtue of section 2 of the Marriage Act
’
.
Section 2 of the Marriage Act provides:
(1) Every magistrate, every special justice of the
peace and every Commissioner shall by virtue of his office and so
long as he
holds such office, be a marriage officer for the district
or other area in respect of which he holds office.
(2) The Minister and any officer
in the public service authorized thereto by him may designate any
officer or employee in the
public service or the diplomatic or
consular service of the Republic to be, by virtue of his office and
so long as he holds such
office, a marriage officer, either
generally or for any specified class of persons or country or area
.
[37]
Section 4(2)
of the
Civil Union Act.
>
[38]
See note 24
above.
[39]
The Alteration Act, unusually, does
not contain a provision for the making of regulations to assist in
the administration of the
statute.
[40]
See also the description of
difficulties encountered by applicants under the Alteration Act in
the paper by T. Klein (note 10
above).
[41]
It is not apparent on the papers how
the reported inadequacies of the Department’s data capturing
system must have been
overcome in this particular instance.
[42]
See paragraph [7]
above.
[43]
The lastmentioned head of relief is
that which I categorised earlier (at para. [32]) as having been
sought in terms of s 172(1)(a)
of the Constitution.
[44]
The first respondent is the Minister
of Home Affairs and the third respondent is the Deputy
Director-General,
Department
of Home Affairs: Civic Services.
[45]
The suggestion was that the
Alteration Act could be amended ‘
s
o
as to provide that a condition or pre-requisite to an application
for a sex alteration by a married person is consent by such
person
(and their marriage partner) to convert their marriage from one
under the Marriage Act to one under the
Civil Union Act
’
>.
The case does not call for any determination in this regard, but I
would venture that any such amendment would be unlikely
to withstand
constitutional scrutiny for a number of reasons.  It would also
be founded on a false premise.  Relief
under the Alteration Act
affords recognition of a sex alteration, not permission to undertake
one.
[46]
The postulated amendment to the
Marriage Act would comprise of ‘
a
deeming provision … (with or without the consent of the other
marriage partner) that a marriage concluded under the Marriage
Act
between a heterosexual couple is deemed to be a marriage under the
Civil Union Act in
instances where one party to a marriage concluded
under the Marriage Act has undergone a sex alteration under the
Alteration
Act
’.
The postulate is misconceived.  First, a person does not
undergo a sex alteration under the Alteration Act,
he or she merely
obtains an altered birth certificate in consequence of a sex/gender
alteration that has already been undergone.
Second, a
postnuptial deeming of a marriage solemnised under one Act as one
concluded under another Act would be vacuous if it
would have no
practical effect whatsoever on the marriage partners’
subsisting rights and obligations vis à vis
each other, or
third parties.
[47]
In
Fourie
(SCA) supra, at para. 20, Cameron JA referred to ‘
the
acknowledged fact that most South Africans still think of marriage
as a heterosexual institution, and that many may view its
extension
to gays and lesbians with apprehension and disfavour
’.
I have little doubt that the same can be said about attitudes
towards same-sex marriages that come about incidentally
because of
the sex/gender change of one of the originally opposite-sex partners
in existing unions.  Prejudice, however,
can never justify
unfair discrimination;
Hoffmann v South
African Airways
2001 (1) SA 1
(CC),
2000
(11) BCLR 1211
at para. 37 and see also
Equality
Project
at paras. 112-113.
[48]
A prevailing reluctance to embrace and advance equality
in the areas of sex and gender, especially when issues concerning
homosexuality
might be involved, is suggested by the fact that the
significant advances made towards the realisation of constitutional
rights
and protections in this area since the dawn of the
constitutional era have in the main been achieved through activist
litigation,
and not, as s 7(2) of the Constitution would
contemplate, proactive executive and legislative action.  See
the long
list of cases, many of them involving the Department,
referred to in paras. 12-14 and the footnotes thereto in
Fourie
(SCA) supra.  The examples of legislatively initiated
amelioration referred to by Ackermann J in
National
Coalition for Gay and Lesbian Equality and Others v Minister of Home
Affairs and Others
[1999] ZACC 17
;
2000 (2) SA 1
(CC),
2000
(1) BCLR 39
, at para 37, have, by comparison, been relatively
limited in their ambit.
[49]
At paragraphs [5]-[9]
above.
[50]
Section 6 of the Identification Act.
[51]
Section 6 of the Identification Act.
[52]
Section 7(2) of the Identification Act, and in
particular the following words therein ‘
and
no other particulars whatsoever
’.
[53]
In paragraph [6]
above.
[54]
The only mention of the population register was at
para. 99 of the respondents’ answering affidavit, where the
deponent
stated ‘
I do not accept that
an alteration of a person’s sex description in the Population
Register would not affect the validity
of a marriage.
’
[55]
At paragraphs [18]- [19], and note19.
[56]
Concise Oxford English Dictionary
10
th
ed., revised (OUP, 2002).
[57]
The obligation imposed on marriage
officers in terms of s 29A(2) with reference to the repealed
Identification Act, 1986,
would fall to be construed, in terms of
s 12(1) of the Interpretation Act 33 of 1957, as applicable
with appropriate modification
with reference to the current
Identification Act, 1997
.
[58]
Section 41(1)(c) of the Constitution.
[59]
See
s 13
of the
Civil Union Act, which
has been
set out in note 34
above.
[60]
See
Bellinger
v Bellinger
note 5
above.
[61]
The law has also moved on in the
United Kingdom since
Bellinger
.
There has been far-reaching statutory reform.  See, for
example, the Gender Recognition Act 2004 (c. 7) and The Marriage

(Same Sex Couples) Act 2013 (c. 30).