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Address by the Deputy Minister of Justice and Constitutional Development, the Hon JH Jeffery, MP, at the Intersex Good Health and Well-Being Dialogue hosted by Iranti, held at the Anew Hotel, Hatfield, 22 February 2024

Programme Director,
Friends and comrades,

Whenever we talk about intersex rights we always acknowledge that South Africa was the first country in the world to prohibit the unfair discrimination of intersex persons by including intersex in the ambit of the Promotion of Equality and Prevention of Unfair Discrimination Act.

This was, in itself, a significant step.

We also acknowledge the fact that South Africa provides for the right to legal gender recognition to intersex and transgender persons in a specific piece of legislation, being the Alteration of Sex Description and Sex Status Act. And we often talk about the shortcomings of Act 49 and the various calls made by the sector to address these shortcomings.

But what we don’t discuss as often is the question as to why there is this gap between constitutionally guaranteed human rights – in this case SOGIESC rights – and the situation on the ground, in the daily lives of intersex people.

Why is it that intersex persons still face inequality, harmful practices, discrimination and prejudice – despite the existence of universal human rights and despite living in a country, such as ours, which has a strong human rights culture?

At the heart of it, I would argue, is a lack of awareness and a lack of understanding.  All of us, here in this room, are very familiar with these issues but we should not underestimate the lack of understanding of other members of society when it comes to intersex issues.

Traditional gender norms and stereotypes are still far more entrenched in society than we think or choose to acknowledge or admit.

Society has created, and still perpetuates, traditional gender roles and binary norms.

Think of how many times you’ve had to complete a form and there are only two blocks to tick – male or female.

Think of how people consider certain forms of behaviour or certain jobs and professions are being suitable to what they categorize as being those for men or for women.

What is the first question a person usually wants to ask when they meet a pregnant woman friend for the first time since the pregnancy?   We all know the answer.

I recently saw an image on social media of a couple expecting a baby and having a so-called gender reveal party.  And I was struck by the fact that there were only two colours as options at the party, being pink and blue. 

And I asked myself, are we not already, even before a child is born, creating expectations about who that child will be, what they will look like, which colours and clothes we think they should be wearing and what their identity will be.

What then happens if that baby is born and is an intersex child?

Where do the parents go to get information?  How many people in society know what sex characteristics are – let alone the difference between primary sex characteristics and secondary sex characteristics?

What happens if, at puberty or adolescence or even later, it is found a child is an intersex person? Who helps the parents to be able to support their child?

This is why we can never underestimate the importance of awareness and advocacy.

The very first message we should be giving to society is that “different doesn’t mean less”. 

Internationally, we know that intersex persons across the globe are often subjected to discrimination and abuse if it becomes known that they are intersex, or if they are perceived not to conform to gender norms.

We need to do more in creating enough awareness around bodily integrity.  

Because their bodies are seen as different, intersex children and adults are often stigmatized and subjected to human rights violations, such as violations of their rights to health and physical integrity, to be free from torture and to have their rights to equality and human dignity upheld.

It has become common practice to subject intersex children to unnecessary surgical and other procedures for the purpose of trying to make their appearance conform to binary stereotypes. I would argue that it’s often done with good intentions, but from a distinct lack of knowledge or understanding about the issues.

Attempts to shape their appearance or physical development are often based on what people think society perceives female and male bodies to be or to look like.

Parents want what’s best for their child, but they often may not have the knowledge or the information for purposes of informed consent and end up agreeing to so-called “normalising” medical procedures.

Language is always important and even the use of the term “normalising” is hugely problematic because it implies that an intersex child needs to go through certain medical procedures to be made “normal”.

According to the United Nations, some anti-discrimination laws around the world do not typically ban discrimination against intersex persons, leaving them vulnerable to discriminatory practices in a range of settings, including access to health services, education, public services, employment and sports.

And even if states do have good anti-discrimination laws, it is often not enough.  States have a further responsibility and a duty to protect and promote intersex people’s rights to bodily integrity, autonomy and self-determination and also to provide for the legal recognition of a person’s gender identity by way of self-determination.

What is also needed, and equally important, is to complement good laws with awareness and advocacy.

I know that many of us here have been trying to advance these issues for a number of years.

I think it is also important to highlight that advances are being made, for example, the African Commission on Human and Peoples' Rights, in March 2023, passed Resolution 552recognising that non-consensual and unnecessary surgical and other procedures performed on intersex persons can cause them, amongst others, lifelong physical and psychological suffering, permanent sterility and incontinence.

The Resolution also recognises that such procedures have irreversible consequences similar to genital mutilation and can be considered as such.

The Resolution further draws attention to concerns about human rights violations against intersex persons which include rejection in society, infanticide and the abandonment of children, a lack of proper legal recognition and administrative processes that prevent intersex persons from acquiring or altering identity documents, unfair discrimination in schools, in health facilities, in competitive sports and in work, and in access to public services.

Importantly, it speaks about the invisibility and lack of awareness and sensitivity to the plight and situation of intersex persons in African communities.

The Commission called on States to do a number of things, such as promote and protect the rights of intersex persons on the continent and to stop non-consensual practices on intersex persons, such as surgical, hormonal and sterilization procedures that alter the sexual characteristics of intersex persons and to ensure respect for their rights to make their own decisions regarding their bodily integrity, physical autonomy and self-determination.

States need to ensure that any action concerning an intersex minor is carried out with the permission of the parents and after medical analysis, taking strict account of the best interests of the child.

There is also a strong need to incorporate intersex education into prenatal counselling and support services and to provide training for health care personnel focused on the health needs and human rights of intersex persons.

Importantly, when it comes to legislation, States must enact enabling legislation and ensure administrative processes that allow intersex persons to change the gender designation on their birth certificates and other official documents, based on decisions taken through medical intervention and full information, including access to their own medical records.

States must also ensure that human rights violations against intersex people are investigated, that perpetrators are prosecuted, and victims have access to effective remedies, including redress and compensation.

States must raise awareness of intersex issues and the rights of intersex persons in society and ensure that, amongst others, immigration officials, law enforcement officers, health, education and other officials are sensitized to the equal treatment of intersex persons.

I am mentioning all these steps which States have to take as South Africa too will need to make sure that we comply.

Practically speaking, as you know, we are approaching the end of this current administration.

This means that after the May national and provincial elections, the new incoming administration will have a big task on its hands to ensure that South Africa complies with these requirements.

What a new administration means, in practice, is that there is always the likelihood of new incumbents in government positions.

For example, if we take the three key government departments being, in this case, the Department of Health, the Department of Home Affairs and the Department of Justice and Constitutional Development, there is chance of having new political principals and any new incumbents may or may not be familiar with all the issues around intersex rights.

This places a renewed responsibility and focus on civil society stakeholders in the sector, like Iranti, to make sure that the current momentum is not lost and that intersex issues remain high on government’s agenda.

One way of doing this is to ensure continued participation in the National Task Team on SOGIESC Rights.

Many of you will recall that the time had come to broaden the mandate and the focus of the NTT and to revise the National Intervention Strategy. Cabinet approved both these interventions in August last year.

The new focus of the NIS on SOGIESC matters entails the following:

I want to highlight that the revised NIS includes transgender and intersex persons and the NTT must elevate the challenges faced by transgender and intersex people, as well as gender non-conforming people.

The NTT was initially established to focus specifically on violence against LGBTI people, but there is clearly a pressing need to widen the scope of the work of the NTT to focus more broadly on all aspects relating to the human rights of LGBTIQ+ people and not only on incidents of violence against them.

This widening of the focus will ensure that the NTT’s work deals with all matters pertaining to sexual orientation, gender identity, gender expression and sex characteristics so as to ensure holistic interventions and to conform to international standards.

The reason that the decision was taken by Cabinet to elevate the involvement of Deputy Ministers  on the NTT was that given the complexities related to SOGIESC matters which involve cross-cutting priorities across key Ministries, including South Africa’s position on these matters internationally,  it is necessary  that the relevant Deputy Ministers convene from time to time, to discuss these strategic matters and advise on necessary interventions, in this regard.

The emphasis for civil society should be on building and strengthening relationships with government roleplayers.

Therefore the NTT would be the ideal structure in which to raise issues such as, for example, compulsory training on informed consent, bodily diversity and the right to bodily integrity for healthcare professionals to ensure that healthcare services to intersex persons are balanced, evidence-based and informed by human rights approaches, or to discuss with the Department of Basic Education ways in which schools could further educate learners on gender, sexual and bodily diversity within the curriculum.

It would also be the best place to continue to raise the issues around Act 49.

To conclude, I want to take this opportunity to thank Iranti for the relationship that we have been able to build over the past 10 years in my role as Deputy Minister and I am proud of the work we have done together.

In order to not lose momentum on the gains that have been made in respect of intersex rights, advocacy and awareness should not only continue, but should be stepped up.

The struggle for human rights continues. It will be up to you to ensure that the gains we have made are not reversed or regressed upon.

I thank you.