The Mariana Trench of transphobia in South Africa: The legislative lacunae in KOS v Minister of Home Affairs

Abstract

Society as a whole has for eons been premised on the importance of patriarchy and heteronormatity. During this time society has seen gradual leaps regarding people in the LGBTQI+ community. South Africa appears to be at the foreground of this recognition of the rights of people in this marginalised grouping. However, what may be present on paper may not appear to be what it is. This case discussion examines the extent to which, among others, the Alteration of Sex Description and Sex Status Act as well as the Marriage Act fail to address the matters ancillary to transgender individuals and the glaring discrimination faced by the transgender community in the face of a country that prides itself in a sense of equality that unfortunately is not enjoyed by all its people. To illustrate this point, it is important to examine the above-mentioned Acts in conjunction with KOS v Minister of Home Affairs. There appears to also be a glaring deficit in the fundamental understanding between sex and gender within the legislation and a need to update the legislation to the contemporary shift in the issues faced by the LGBTQI+ community.