Three transgender women want their birth certificates amended to reflect their true genders and an assurance that their civil marriages to their spouses will remain intact.

They have approached the Western Cape High Court to ensure they are able to do so‚ after running into difficulties at the Department of Home Affairs.

The women‚ whose names have been withheld in efforts to protect their identities as they fall into a vulnerable class in South Africa‚ sought to have their sexual descriptions changed on their birth certificates from male to female.

“The Department of Home Affairs refused to amend the sex description of our clients‚ arguing that the existing civil marriages‚ which are heterosexual‚ precluded the Department from amending the sex descripton as it would amount to recognition of a same-sex marriage under the Marriages Act‚” the Legal Resources Centre‚ representing the couples‚ said.

In light of this‚ the marriages of one of the couples was deleted from the national population register in order to accommodate the sex description change.

The remaining two couples were advised to divorce in order to give effect to their gender identity rights.

Currently there is no provision in South African law that allows a civil marriage‚ of a heterosexual couple‚ to be converted to a civil union of a same-sex couple.

The applicants‚ who are all married in terms of the Marriages Act‚ argue that a sex description change does not constitute grounds for divorce.

Their application is supported by civil society organisation Gender DynamiX‚ which hopes a ruling in favour of the couples will address the discrimination and prejudice suffered by transgender people seeking a sex description change on their birth certificates.

“A positive outcome in this case will go a long way to realising the rights of transgender persons to dignity‚ family life‚ bodily integrity and equal treatment before the law‚” the Legal Resources Centre said.

The applicants are asking the court to:

- Declare that the director-general is required by law to alter a person’s sex description in terms of the Alteration of Sex Description and Sex Status Act (SDA)‚ irrespective of that person’s marital status‚ and that he 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 description in terms of the SDA.

- Declare that the Department of Home Affairs’ refusal to process the applications in terms of the SDA of two of the applicants‚ because they were married‚ is unconstitutional and unlawful.

- Declare that the department’s de-registration of the marriage between one of the couples was unconstitutional and unlawful.

- Direct the director-general‚ within one month of the date of this order‚ to alter the sex description and forenames of the applicants.