Recently I attended a webinar hosted by STEP (The Society of Trust and Estate Practitioners) on gender identity in estate planning in the European context, which I found most interesting. That led me to research this topic in the South African context, which I would like to share with you.
So, what is gender identity? Gender identity is a personal internal perception of oneself.
We are born, either as the male or female gender. However, the category in which a person identifies may not match the sex they were registered at birth. Included in this category is a category known as non-binary. It is an umbrella term for people whose gender identity doesn’t sit comfortably with “man” or “woman”.
The non-binary topic is taboo in many countries and many countries are not as progressive on gender identity as one would like to think.
For example, non-binary genders are not recognised in UK law. The UK’s Gender Recognition Act 2004 enables a person to change the sex recorded on their birth certificate, either from male to female or vice versa. However, the Act makes no provision for the recognition of any other gender.
In contrast, South Africa is one of the more progressive jurisdictions in terms of protecting the rights of persons identifying as transgender and non-binary.
There are only two sexes recognised in South African law, being male and female (the binary model). In terms of our legislative framework, we have the Constitution (section 9) that explicitly prohibits discrimination based on gender, sex, and sexual orientation, although gender identity is not an explicitly protected category. In addition, we have the Civil Union Act 17 of 2006 giving legal recognition to same sex marriages.
The Alteration of Sex Description and Sex Status Act 49 of 2003 allows transgender South Africans to change their legal gender markers. Although the Alteration Act does not give a definition of “gender”, it does provide the following definitions:
“‘gender characteristics’ means the ways in which a person expresses his or her social identity as a member of a particular sex by using style of dressing, the wearing of prostheses or other means;
‘gender reassignment’ means a process which is undertaken for the purpose of reassigning a person’s sex by changing physiological or other sexual characteristics, and includes any part of such a process;
‘primary sexual characteristics’ means the form of the genitalia at birth;
‘secondary sexual characteristics’ means those which develop throughout life and which are dependent upon the hormonal base of the individual person;
‘sexual characteristics’ means primary or secondary sexual characteristics or gender characteristics. ”
The Act requires that medical or surgical gender reassignment procedures take place. The Act defines “gender reassignment” to mean a process undertaken for the purpose of reassigning a person’s sex by changing physiological or other sexual characteristics and includes non-surgical interventions such as hormone therapy. An application to change gender marker must be submitted along with a birth certificate and a confirmation from two medical practitioners that medical or surgical gender reassignment procedures have taken place. However, the strict requirements of the law impose barriers on legal gender recognition that leave many transgender people without accurate identity documents.
According to the Department of Home Affairs a revisit of its national identity system to be more inclusive and recognize different gender identities are on the cards. According to Home Affairs’ Draft Official Identity Management Policy: Public Consultation Version of 22 December 2020, there are an estimated 530,000 South Africans who identify as non-binary.
Our courts have applied the constitutional prohibition on discrimination to cases involving harassment of transgender persons. In 2019 the Equality Court (Western Cape) handed down judgment in September v Subramoney N.O and Others 2019 4 All SA 927 regarding a transgender woman serving a prison sentence inside a male correctional facility. While incarcerated, prison officials denied Jade September the right to express her gender identity through her hairstyle, dress, female underwear, or small amounts of make-up. She was subjected to verbal abuse and harassment from prison officials, and at one time was placed in segregated confinement after trying to express her gender. The court held that the refusal to allow a transgender person to express their gender identity is unfair discrimination that violates both the right to equality as enshrined in the Constitution and section 8 of the Promotion of Equality and Prevention of Unfair Discrimination Act. Furthermore, it ordered officials to address her as a woman using female pronouns, and the Department of Correctional Services was ordered to introduce transgender sensitivity training for current and new employees.
Back to gender identity in estate planning.
Elon Musk’s 18-year-old transgender daughter was recently granted permission to change her name in accordance with her new gender identity, from Xavier Alexander Musk to Vivienne Jenna Wilson.
From an estate planning perspective, it begs the question – how will a decision like this impact Xavier/Vivienne’s inheritance? With regards to inheritance, it is now up to Musk to decide whether his daughter is to inherit from his estate. In a case like this, estate planning professionals must re-think the concept of gender identity and include more gender-neutral descriptions, for example “child”, “sibling”, or “cousin”) and avoid using gendered terms like “brother”, “son” or “granddaughter”. For terms like “niece” or “nephew”, you may consider using a phrase such as “the child of my sibling”.
If a specific bequest is made in Musk’s child’s favour, then the drafter of the Will must ensure that she is clearly identifiable in the Will through, for example, her name and unique identification number, ideally via a phrase such as “my child, Vivienne Jenna Wilson (previously known as “Xavier Alexander Musk”). If not, it could cause a dispute.
Of course, it will be difficult to accommodate every single possibility when it comes to gender identity in estate planning. However, using the strategies here can show an extra level of respect to any beneficiary whose gender identity is important to them.
Estate planning professionals need to understand how to deal with this in a legal, professional, and respectful manner.