Failure to recognise a third gender option: unfair discrimination or justified limitation?

Abstract

This article seeks to answer the question of whether the State’s failure to recognise a third gender option for transgender non-binary individuals amounts to unfair discrimination or whether this limitation could be justified. After a brief conceptual framework is discussed, the article looks at the right to equality as found in section 9 of the Constitution of the Republic of South Africa, 1996. Thereafter the article explores whether the non-recognition of a third gender option could be found to be discrimination on a ground listed in the Constitution, as well as whether it could be found to amount to an analogous ground. It is opined that non-recognition of a third gender option does amount to discrimination on the analogous ground of gender identity. It is further submitted that no justification for this limitation of the right to equality would be upheld by a competent court.