Right to identity

The applicants in this case were transgender and wanted to legally change their gender in terms of the Alteration of Sex Description and Sex Status Act. The applicants were married and intended for the marriages to subsist. In applying to have their gender marker changed, they were told that their marriages were in impediment to their applications as, in terms of the Marriages Act, only heterosexual marriages were permitted. Their legal change of gender would mean that they were no longer parties to heterosexual marriages, but same-sex marriages. The constitutional right implicated in this case was the applicants right to administrative justice and their rights to equality and dignity. The Court found there was nothing in the Alteration of Sex Description and Sex Status Act which prevented the applicants from having their gender legally altered. Furthermore, their marriages were not an impediment to the alteration of their sex status. Interestingly, the court noted that the two pathways to marriage in South Africa (through the Marriage Act, which only regulates different sex couples, and the civil unions act, which regulates same sex and different sex couples), did not create parallel systems of civil marriage, but only parallel systems for the solemnization of marriages in South Africa.