Despite the violence the trans community continues to face, they have continuously played an invaluable role in progressing queer rights. However, the community often experiences significant challenges such as discrimination, harm, and the denial of fundamental human rights. We believe that everyone should be equal before the law and enjoy the benefits of the law. ‘Everyone’ includes the trans community. Thus, to progress trans rights, the post makes privacy tangible and actionable by exploring how POPIA helps the trans community.

Understanding the trans community

Let’s start with some context. When we think about the concept ‘gender’, it conjures many images, entrenched ideas, and social norms. In fact, many people believe that a person is born having a specific gender (indicated by biological sex organs) and continues to express that gender throughout their lives. However, that reality is not true for everyone; it ignores an entire spectrum of trans or gender diverse people.

The nuances of gender

It should now be clear that there’s a difference between a person’s body and gender. While a person’s anatomy at birth suggests that they may be male or female, that same person can feel differently. In other words, gender is someone’s internal sense of who they are. Practically speaking, the person’s gender can reveal that they’re male, female, a combination of both, or even exist outside these categories. Further, a person’s relationship with their gender can be dynamic: changing over time.

The people who feel this difference are known as ‘trans people’ or ‘trans’ for short. They feel that the gender assigned to them at birth restricts them, is meaningless, or uncomfortable. You may think that the definition is broad. That thought is correct: the aim is to include all trans people.

Conversely, a person whose gender identity completely matches the one they were born with is known as ‘cisgender’. People use this term to avoid differentiating between trans people and ‘normal’ people; instead, we distinguish between trans people and cisgender people.

It is also crucial to realise that gender and sexuality (hetero-, homo-, bi-, and asexuality) are different. While gender focuses on a person’s internal sense of gender, sexuality focuses on sexual attraction.

On another point, gender is not necessarily binary. Many people (including trans people) identify as male or female, but several others identify as ‘non-binary’. Non-binary people feel their gender isn’t specifically male or female. Instead, they feel it is a combination of both, changes over time, or is something completely unclassifiable.

Transitioning

Trans people may transition socially or physically to align better with their gender identity.

  • Social transitioning refers to how trans people interact with society. They may come out as trans, ask the people around them to refer them with different words or pronouns, or move to other gendered spaces.
  • Physical transitioning refers to a trans person changing their physical appearance to what feels right for them. It may include changing how they dress or do their hair, wearing make-up, or seeking medical support in the form of hormone therapy or surgery.

However, importantly, not all trans people choose to transition, and even those that do may do so over time.

How should you address a trans person?

Under no circumstances should you refer to a trans person as ‘he/she/it’. Instead, simply use the pronoun ‘they’ or call them by their name. Otherwise, if you’re unsure, ask.

As a side note, many laws, lawyers, and policies need to catch up to referring to trans people respectfully. However, our government has made significant progress. Recently, Ronald Lamola, the Minister for the Department of Justice and Constitutional Development made a commitment to updating legislation to protect transgender rights and pronouns. Plus, he added government officials who interact with trans people need to undergo sensitivity training in this respect.

Do trans people enjoy the right to privacy?

In South Africa, everyone enjoys the right to privacy. This right is enshrined in our Constitution (section 14). So, trans people enjoy the right to privacy. However, despite the existence of this right, the community faces several privacy challenges. We’ll illustrate some challenges through examples.

Historical personal data

Sihle is a trans man that applies for a position as an auditor at a prominent audit firm. However, to get the job, the firm subjects him to background and credit checks. The checks reveal that Sihle is listed as ‘female’ on several databases. After some more research, the firm discovers Sihle’s previous gender. So, they decide not to hire him.

Changing gender on database

Sammy is a trans woman. She’s been with the same medical insurance company for several years. Legally, she’s changed her gender with the Department of Home Affairs. However, her insurance company still lists her gender as ‘male’. How would she go about the change without affecting her medical insurance or having to pay different rates?

POPIA helps the trans community

The scenarios mentioned above illustrate two examples of the challenges trans people face with the right to privacy. However, POPIA may offer some practical help.

The right to be forgotten

The right to be forgotten is the right of data subjects (people to whom personal data relates) to have organisations and people delete their personal data. While South African law doesn’t give data subjects a general right to be forgotten, we can interpret POPIA to give effect to this right.

Like other data protection laws, POPIA says that organisations and people (responsible parties aka ‘RPs’) may only store or use personal data where adequate, relevant, and not excessive concerning its purpose. Although POPIA does not explicitly grant data subjects a right to be forgotten, it empowers data subjects to instruct responsible parties (the people who hold their personal data) to correct or delete their personal data (section 24).

The effect of section 24 is to give trans people the right to correct or delete any personal data that RPs have on them. This right is significant because POPIA helps the trans community by giving them a practical means to correct or delete personal data such as their names and genders. Thus, POPIA can help reduce the privacy challenges the community faces.

Data subject access requests

The typical way data subjects get RPs to correct or delete their personal data is through a mechanism called data subject access requests (DSARs). Practically speaking, a data subject would submit a DSAR via the RP’s privacy email address or an online webform. Once received, the RP would provide the data subject with a complete record of all personal data it has on the data subject. However, the DSAR can also be narrow and limited to specific personal data.

DSARs help trans people get the following personal data that RPs hold:

  • Confirmation that the RP processes their personal data.
  • Access to their personal data.
  • The lawful basis for processing their data.
  • The period for which the RP will store their data.
  • Information about how the RP obtained the data.
  • Information about automated decision-making and profiling.
  • The names of any third parties with whom the RP shares their personal data.

Importantly, you don’t need to justify why you’re submitting a DSAR. However, the RP may require you to verify your identity and ask questions to help it locate the information.

Complaining to the Information Regulator

If an RP refuses to help you correct or delete your personal data, you should submit a complaint to South Africa’s Information Regulator.

Actions businesses can take

It’s not only up to trans people to give effect to their rights. As you can see, businesses have a role to play in complying with POPIA. That’s where we can help.

  • Protect the personal data of trans people by joining our data protection programme.
  • Manage relationships with data subjects efficiently by asking us to help you with data subject access requests.