The New Deal was a domestic programme of the administration of U.S. President Franklin D. Roosevelt between 1933 and 1939, to bring about immediate economic relief after the Great Depression. Opposed to the traditional American political philosophy of laissez-faire, the New Deal embraced the concept of a government-regulated economy aimed at achieving a balance between conflicting economic interests.
Where human rights in South Africa are concerned, and perhaps trans rights more specifically, there has been a similar balancing act between regulation and freedom. We forbid hate speech but we recognise freedom of speech. We recognise the rights of trans people to self-identify and change important official documents, but Home Affairs officials seem to get away with indulging their personal scruples about processing a trans person’s papers.
How does the State enforce contemporary rights when social attitudes are stuck in the 1950s? This is the quandary for trans people, and their allies, in South Africa. Push too hard and there is resistance, act too timidly and trans lives not only don’t matter, they are invisibilised (or sensationalised for clickbait).
On paper, trans and gender diverse people in South Africa have a good deal. Or do they? All deals are a compromise, and some deals aren’t worth the paper they’re written on, negotiated by unequal partners. Often subsumed into rights for same-sex loving people, trans rights are in some ways the “poor cousin” of the greater queer struggle, tacked on to conversations about gay men and lesbian women, bogged down in prurient curiosity about hormones, surgeries and genitalia. Or the push for trans dignity is reduced to “gender panic” conversations about toilets, or sporting codes where winning is everything.
So what are the rights trans people have in South Africa? Well they have a number of general rights enshrined in the Constitution, including rights in workplaces, places of education, in health care settings, and in the broader society where they may face harassment and harm. And trans people can change their legal sex marker on identity documents. These rights come with caveats of course, largely that these are paper rights and worth nothing if there is no implementation or oversight. There are very few resources for trans people to access hormones and surgeries through the State, and only two hospitals carry out gender affirming surgeries, and then sometimes at the whim of over-burdened practitioners. Covid has also caused a brutal prioritisation of services, and trans people are very low on that list.
Where recognition of sex markers is concerned, activists have noted that beyond the often hateful treatment trans people receive in Home Affairs offices, the system is still steeped in the gender binary: one must be one thing or another. All credit to the State, a proposal is on the table for the development of an identity system which simply provides a newborn with a number, with no reference to sex. This would allow people to move in the world freed from the constrictions of gender binaries. Of course there will be other ways for gender data to be aggregated, but the trans and gender diversity struggle has shown that many people are simply beyond the binary, and should be free to be so.
Trans activist and psychologist working in sexualities, gender and trauma in KwaZulu-Natal province, Chris McLachlan, spoke recently of their sense that hate crimes against trans people are on the rise. Against a backdrop of recent murders of queer people, this makes sense. Well it does and it doesn’t, because making sense of anti-queer hate crimes is always a tortured exercise in psychological and sociological theorising. It’s also almost impossible to access a reliable and updated database of hate crimes aimed at trans and gender diverse people. What you don’t record you don’t plan for.
So what is the plan? Perhaps we don’t just need a New Deal on trans rights, but a New Deal on human dignity, recognition of which is in short supply in our country. As an organisation PATHSA recognises the resistance to trans rights, but argues that meeting the needs of trans people, not just in health but in all spheres of social engagement, is a social good. While it’s unhelpful to position trans people only as marginalised victims, the truth is rather bleak. We need a New Deal on human dignity, one where there is no compromise, just an unflinching aim at the highest possible target, respect, equality, equity and the freedom to be.