Department of Public Law

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Browsing Department of Public Law by Author "Barnes, Johndré"

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    Inconvenient identities : the recognition of a non-binary gender in view of the constitutional values of human dignity, equality and freedom
    (Stellenbosch : Stellenbosch University, 2024-03) Barnes, Johndré; Botha, Henk; Stellenbosch University. Faculty of Law. Dept. of Public Law.
    ENGLISH ABSTRACT: Central to this study is the need to recognise the right to be different. The Constitution of the Republic of South Africa, 1996 (“Constitution”) affirms the democratic values of human dignity, equality and freedom. It further strives towards a transformative and egalitarian society wherein diversity and plurality are valued, and entitles everyone to respect for and protection of their rights to human dignity, equality and freedom. However, in certain circumstances, the actualisation, interpretation and application of these rights and values demonstrate a troubling trend, especially concerning claims that represent a challenge to the conventional structures, (hetero)normative standards and presumptions that are deeply embedded in society. The South African legal framework incorporates a binary system that presumes that all persons are born as either female or male. The formal assignment of gender and sex on an individual’s identification documents can affect their whole life. It functions as a mandatory element of an individual’s legal status and identity since legal frameworks – in terms of both private and public law, as well as domestic and international law – require gendered subjects. Against this backdrop, the primary objective of this study is to establish whether and to what extent the constitutional rights and values of human dignity, equality and freedom require the legal recognition of a non-binary gender. To this end, a substantial part of the study entails a critical analysis of the constitutional rights and values of human dignity, equality, and freedom. The study engages with the relevant constitutional provisions, legislation, case law and academic literature and uses queer theory to analyse and critique legislative and judicial responses to the Constitution’s call for inclusion, mutual respect and recognition of diversity. The study further uses queer theory to contextualise and frame the need for a more generous and transformative interpretation of these rights and values and to imagine a society where individuals are not required to fit within strict binaries, and where the humanity and dignity of individuals are not conditioned on their ability to conform and assimilate to rigid categories. It argues that such a reading can provide the basis for a responsive framework that: (i) recognises the diversity of individuals worthy of respect and protection (dignity), (ii) is suspicious of approaches which celebrate and uphold conventional forms of being while disciplining or containing attempts to move beyond such conceptions (freedom), and (iii) resists attempts to make the norms of heteronormativity into the standards by which queer or diverse identities should be measured (equality).