Notaries believe that any change in recorded gender should be noted on a person’s birth certificate and the information made available to the public to ensure transparency and safeguard third-party rights.
“The [Gender Identity] Bill puts into question established practices of the public registry, which should be totally transparent and provide complete factual information. It is of vital importance that a clear and uninterrupted link is maintained between the previous gender and the name of an individual and the new ones taken up. This is needed to safeguard legal certainty and any rights and obligations acquired and entered into by individuals,” the Notarial Council said in its position paper on the Gender Identity Bill, issued for a month-long consultation period that ended last week.
Presently, certificates issued by the public registry contain an annotation if any change is made. The Bill suggests this will no longer apply in gender cases. The Bill also suggests that the director of the public registry must ensure that a gender register – containing details about gender changes – is kept and “no one shall be entitled to search that index”.
However, the Notarial Council feels this undermines the role of notaries to provide legal certainty and the register should be open to the public.
“If the indexes at the public registry, where the gender-specifying deeds are to be enrolled, are not searchable, then a notary has no means of ascertaining a direct connection between a particular person pre- and post-gender change. This could easily lead to abuse,” the council said.
It welcomed the simplification of the procedure to undergo a change in gender. Transgender people will no longer have to undergo sexual reassignment surgery or treatment to have the right to change their official documents to match their gender identity. They will be able to ask the director of the public registry to change their recorded gender on the strength of a public deed drawn up by a notary. The notary will also be tasked with explaining the legal implications of the gender change.
In its position paper, the council noted that notaries were already duty-bound to explain the legal implications of a deed but this did not include its social effects.
“The notary should not be made to shoulder a responsibility that not even the legislator seems to know the extent of,” the council said.
It added that the Bill stated it was without prejudice to any issue involving parenthood and marriage. This gave rise to various questions in the case of married couples: would the law recognise marriage between people of the same gender or would this be regarded as a civil union?
A human right
The right to gender identity should be listed as a fundamental human right and included in the Constitution, according to human rights NGO Aditus.
In its position paper on the Bill, Aditus said the responsibility of informing a transgender person on the implications of a change in gender identity should not be limited to notaries. There were some issues that went beyond legal implications, such as social, financial and family issues.
The NGO recommended reviewing the procedure so it is not tied to a public deed or the transgender person’s acceptance that the information must become publicly available.
Gender identity should not fall under the ministry responsible for equality but the one dealing with public authorities, to ensure good administrative practices and clear lines of authority.
Provisions to safeguard the rights of a spouse should be included in the law.