Towards a Gender Galaxy Normativity

  • Charl Herman





Fourth Year LLB Student, School of Law, University of the Witwatersrand




The Alteration of Sex Description and Sex Status Act 49 of 2003 (‘the Act’) provides that intersex[1] and post-operative[2] transsexuals[3] are able to alter their existing sex status, and upon a successful application,[4] are then entitled to receive an amended birth certificate.[5] The Act has been criticised for not including pre-operative transsexuals[6] within its ambit. Due to the fact that the Act does not include pre-operative transsexuals, it also does not include the broader group of the transgender person.[7] In the terminology of Nancy Fraser, this results in a case of ‘misrecognition’.[8]

The question, then, in the context of sex status, is whether transgender rights transformation can occur within the current normative legal discourse, or, if it is only achievable by reconceptualising the current normative framework to one which recognises at its very core, a gender galaxy performativity? This question will be answered, firstly, by critically analysing the normative structure of sex[9] and gender[10] within South African legal discourse. Secondly, the origins of how gender is produced within a normative framework will be critically deconstructed. Finally, this paper will suggest a transgender normativity which reimagines sex and gender by proposing a gender galaxy normativity which holds the key in transgender rights transformation.




Within South African legal discourse, the key to unlocking transgender rights transformation may lie with the concept of ‘transformative constitutionalism’;[11] which is an interpretive concept first coined by Karl Klare. Transformative constitutionalism ‘connotes an enterprise of inducing large-scale social change through nonviolent political processes grounded in law’.[12]


Transformative constitutionalism is a ‘transformative project’[13] whereby there is a commitment by the courts to transform the law as it is,[14] into law which unlocks the transformative visions of the Constitution of the Republic of South Africa.[15] However, Klare cautions that the aspirations of the transformative project cannot be attained where the existing legal culture suffers from inherent liberal conservatism.[16]

The question that must therefore be posed is whether transformative constitutionalism is capable of achieving transgender rights transformation?


In assessing the ability of the Constitutional Court to unlock the transformative potential of the Constitution in the context of gender equality, Catherine Albertyn is of the view that transformative change has, at best, occurred incrementally,[17] and in some respects, change has been regressive rather than transformative.[18] Albertyn argues that in light of Constitutional Court cases dealing with gender equality,[19] the Constitutional Court has achieved transformation only to the extent that change occurs within the ‘institutional doctrinal and normative boundaries’.[20] This results in the jurisprudence of the Constitutional Court having a particularly liberal flavour.[21]


Despite this, as Dennis Davis argues, the legal culture and political bodies within the political community, will tend to influence and favour jurisprudence along conservative lines - thus halting the transformative project.[22] In the context of identity and gender jurisprudence of the Constitutional Court, Davis is of the view that what is intelligible or acceptable to the Court, is the notion that persons must conform to the heteronormative view of sex and gender; and that persons who do not frame their constitutional challenge in heteronormative terms, will be left outside legal discourse.[23]


Importantly, Davis recognises the cause of why the Constitutional Court is unable to unlock the transformative project in the context of gender relations. The cause relates to the inherent institutional conservative legal culture which reinforces the heteronormative view of sex and gender.[24] This then, will ultimately result in liberal jurisprudence of the Constitutional Court lacking transformative potential.[25]

Similarly, Pierre De Vos argues that the Constitutional Court has upheld a heteronormative understanding in legal discourse of sex and gender, which results, in those persons living outside the heteronormative conception, being accepted within society only to the extent, that such persons can show they are ‘good’ and not ‘bad’ homosexuals.[26] In this context, the ‘good’ homosexual is a person who behaves ‘like a well-adjusted, monogamous, financially responsible consumer’,[27] whilst the ‘bad’ homosexual, is a person who chooses to live outside the heteronormative concept.[28]


In the context of the family, De Vos criticizes the judgment in National Coalition for Gay and Lesbian Equality v Minister of Home Affairs,[29] in so far as the Constitutional Court had reverted to a heteronormative conception of the family, by failing to expand the concept of a family to one that does not need to conform to heteronormative conceptions of the family.[30] According to De Vos, the Constitutional Court missed an opportunity to follow on from the transformative judgment in National Coalition for Gay and Lesbian Equality v Minister of Justice,[31] whereby the Court envisioned sexuality and sexual orientation within non-essentialist terms, embracing difference rather than sameness.[32]


From the above critical analysis, it is evident that transformative constitutionalism has proven to be incapable of realising a fundamental shift in sex and gender relations, due to the inherent liberal conservatism in constitutional jurisprudence,[33] which is underscored by a conservative judicial[34] and political[35] ideology. If transformative constitutionalism in its current state, has failed to transform sex and gender relations within the ‘hierarchical hetero/homo binary’,[36] then the possibility of transformative constitutionalism redefining transgender rights in the context of sex status, is a dream rather than a reality.




In order to unlock transgender rights transformation, it is important to determine the origin of how gender comes into being. Judith Butler argues that gender is performative, in that within the norms and institutions of society, gender is created by a repetition of normative acts of the subject.[37] The subject is recognised in society not because there is an ‘I’ before public discourse,[38] but rather, the normative structure itself recognises and ‘genders’[39] the subject through public discourse.[40] The subject is compelled through public discourse, to ‘cite the gender norm’,[41] in order to become the ‘I’ within this normative structure.[42] This gender norm gives essential content to gender in public discourse, to the extent that sex and gender consists ‘naturally’ of that particular gender norm.[43]

However, where the subject cites a norm that is contrary to performative acts (for example, a biological male exhibiting typically ‘female’ traits), such citation will be regarded as ‘theatrical’,[44] and the subject will then become ‘misrecognised’[45] or ‘emerge at the limits of intelligibility’[46] within public discourse. Importantly, Butler argues that gender transformation cannot occur by the intentional will of the subject;[47] gender transformation can only occur through ‘the convergence of norms at the site’[48] of the becoming of the subject.[49] It is at this moment of the becoming, that gender is decided for us by public discourse,[50] thus it would be a mistake to think that gender can be willfully constructed through the self.[51]

Butler argues that because gender is performative, it is impossible to transform gender by the theatrical ‘performance’[52] of the subject.[53] However, those theatrical performances may be given a voice within public discourse through the notion of ‘cultural translation’.[54] The suppressed voice of the theatrical subject is given the ability to speak, when that voice is translated into public discourse. Though, there is no obligation upon the public to hear that voice.[55]


It is important to reiterate that, according to Butler, the transformation of gender occurs at ‘the convergence of norms at the site’[56] of the becoming of the subject.[57] Significantly, Butler argues that the performativity of gender is not contingent on a heteronormative binary of sex and gender.[58] If this is so, then, the possibility of unlocking transgender rights lies in creating a normativity which creates a transgender performativity, whereby ‘performing’[59] transgender is recognised as a performativity. The transgender person, then, is not ‘misrecognised’[60] for purposes of the law, because the theatrical performance of the transgender person has now become the performative.[61] Therefore, the question that must be asked is: what particular normative structure would produce a gender performativity, which would regard ‘transgenderism’[62] as performative?




It has been acknowledged, that although the Constitution[63] has envisaged a transformative South African society,[64] irrespective of the transformative visions of the Constitution, transformation cannot occur within legal discourse in the context of sex and gender. This is because the legal culture[65] and the political community[66] are unable to rid themselves of the heteronormative[67] and liberal conservatist[68] ideology. If gender is performative,[69] then it would be unrealistic to suggest that the very legal discourse which creates a heteronormative binary of sex and gender,[70] would recognise the theatrical performance[71] of the transgender person as performative. Why should the transgender person be forced to voice their existence[72] through the mode of cultural translation,[73] within a legal discourse that rejects their very being?


Dylan Vade has suggested that what is needed is a reconceptualisation of sex and gender, under the name of ‘the gender galaxy’.[74] The gender galaxy is an infinite three-dimensional,[75] non-linear space,[76] where all forms of gender ‘performance’[77] are recognised within the space.[78] The gender galaxy recognises sex as a social construct,[79] and thus the linear hierarchical view of gender flowing from sex[80] is displaced by gender ‘performance’[81], whereby the ‘performance’[82] of the self, constitutes gender.[83] Vade explains this with the statement ‘I have gender claustrophobia and need a big space. I do not like it when people tell me that I have to identify as female or male’.[84]


Therefore, if it is accepted that gender is performative,[85] then the possibility of unlocking the rights of the transgender person, lies with the notion of gender performativity being linked to the gender galaxy normative, whereby the institutions and public discourse which produce gender norms in that gender galaxy are not hierarchically ordered but rather embrace all forms of gender performance. For all gender performance in the gender galaxy is, normatively speaking, performative.






It is evident within the South African legal and public discourse that the existing heteronormative views of sexuality are firmly entrenched and cannot be displaced without questioning and deconstructing the very social and political institutions which seek to produce it.[86]


It has been shown above, that gender as we know it, within the gender galaxy, can indeed be transformed into producing gender relations that recognise the theatrical performances of persons who are considered to be outside the heteronormative. Such persons would thus be recognised by virtue of their theatrical performances being the very performative function of gender recognition which is entrenched and produced by legal and public discourse. This performativity may indeed include an array of gender performances, which for present purposes, can theoretically embrace the transgender person or the performance of transgender, which would then be seen as a normal and conventional expression of gender.                                                                                              

This is achieved by gender performativity being linked to the gender galaxy, which recognises theatrical performances of gender by embracing difference and non-essentialism within its very conception of gender. The gender galaxy being an infinite three-dimensional,[87] non-linear space,[88] has within its space an infinite number of planets, which all have different performative gender relations, which produce their own specific type of gender performance within legal and public discourse of a particular planet.[89] The planets within the gender galaxy should be seen as societies which produce their own type of gender performance through performativity, and the type of gender performativity that is created and recognised as normal or conventional, would ultimately depend on the specific particularities of the legal and public discourses of a particular planet.


These planets should be seen as being bound by the overarching normativity which reigns supreme in the gender galaxy, that is, the acceptance and recognition that gender is a non-essential category, capable of an infinite number of variations and interpretations, and which is produced in an infinite number of ways by legal and public discourse particular to a planet within the gender galaxy. There are no essential views on gender; the only essential variable is that gender is immutable and infinite.

The important point here, is that the gender galaxy accepts that these independent planets have differing and different ways of producing gender, and that irrespective of the type of gender that is produced, within the normative conception of the gender galaxy, it recognises these different forms of gender production as normal and conventional, because it recognises that different planets have all different legal and public institutions which create and produce gender.


The addition of planets to the hypothesis of the gender galaxy first proposed by Vade is significant. As shown above, it is entirely possible that gender is capable of transformation at ‘the convergence of norms at the site’[90] of the becoming of the subject,[91] when viewing the normative conception of the gender galaxy in totality, which recognises that gender is capable of infinite forms of expression. The question then is: why can we not chart a course to a planet which views transgenderism as normal and conventional?


In reality, the heteronormative hold on South African legal and public discourse continues but for small concessions of token recognition to those persons who live outside the heteronormative.[92] The unlocking of transgender rights is theoretically possible within the context of gender performativity[93] and the gender galaxy,[94] but what is required for such recognition is a total overhaul and replacement of existing heteronormative views on sex and gender within South African legal and public discourse.


The challenge, then, for future scholarship is to analyse how the gender galaxy performative, which views transgenderism as normal or conventional, because it recognises that planets may indeed produce and recognise gender in differing ways and such theoretical conception can then be used to deconstruct and reproduce gender relations within South African society. How this can be achieved exceeds the scope of this work, however, within this analysis lies the key to unlocking transgender rights.




The unlocking of transgender rights transformation in South Africa in the context of sex status, does not begin by relying on the terms within current legal discourse, because those terms, are structured ideologically within a heteronormative binary.[95] The possibility of unlocking transgender rights transformation begins with a reconceptualisation of the existing normative structure, into a gender galaxy normative, whereby the performativity of the gender galaxy, embraces at its core, the performance of transgender.



[1] C Visser & E Picarra ‘Victor, Victoria or V? A constitutional perspective on transsexuality and transgenderism’ (2012) 28 SAJHR 506 at 512 (the authors are of the view that the Act includes intersex persons within its ambit. Intersex persons are those persons that display characteristics of the both the male and female biological sex).

[2] Ibid at 514 (the term ‘post-operative’ should be understood in the context of those persons who have undergone gender reassignment by medical procedures in order to alter their sex in accordance with the sex and gender in which they choose to live).  

[3] AN Sharpe Transgender Jurisprudence: Dysphoric Bodies of Law (2006) 26-7 (the term ‘transsexual’ had been first used by, Doctor Harry Benjamin, who used the term to describe those persons who had the willing intention to change their existing sex, in so far as such persons saw their existing genitalia as ‘disgusting deformities’).

[4] Section 2 of the Alteration of Sex Description and Sex Status Act 49 of 2003 (a person may make an application to the Director-General of the National Department of Home Affairs to alter their sex status and such application must meet certain requirements for it to be approved).

[5] Section 3 (1) of the Act (once the application has been approved, the birth register of the person in question will be amended, in accordance with section 27A of the Births and Deaths Registration Act 51 of 1992, and such person will then be issued with a new birth certificate).

[6] Visser & Picarra op cit note 1 at 515 (the authors hold the view that pre-operative transsexuals are those persons who have the intention to alter their sex, but for whatever reason, are unable to do so).

[7] Sharpe op cit note 3 at 35 (the transgender person is used as an ‘umbrella term’ to describe those persons who live ‘outside’ the heteronormative and who choose to live according to their own ‘trans-subjectivities’); D Vade ‘Expanding gender and expanding the law: Toward a social and legal conceptualization of gender that is more inclusive of transgender people’ (2005) 11 Michigan Journal of Gender & Law 253 at 266 (Vade holds the view that there is no true transgender person, but such persons are generally categorised as being ‘trans, tranny, trannyboy, trannygirl, transsexual, transgender, shinjuku boy, boi, grrl, boy-girl, girl-boy-girl, papi, third gender, fourth gender, no gender, bi-spirit, butch…‘).

[8] N Fraser ‘Social justice in the age of identity politics; Redistribution, recognition and participation’ in N Fraser & A Honneth (eds) Redistribution or Recognition?: A Political-Philosophical Exchange 7 at 17-8 (in the context of gender, misrecognition occurs when a cultural institutionalised society reinforced by the heteronormative, views the transgender person as living ‘outside’ its terms for recognition).

[9] Visser & Picarra op cit note 1 at 508 (the authors are of the view that sex is a biological fact and which is determined by the external appearance of a person’s genitalia).

[10] Vade op cit note 7 at 276 (Vade is of the view that gender is expression, in that it is determined by a person’s ‘physical, mental, spiritual, sexual, inter-relational, connective expression…Gender is a sense of self and relationship to the world’).

[11] K Klare ‘Legal Culture and Transformative Constitutionalism’ (1998) 14 SAJHR 146.

[12] Ibid at 150.

[13] C Albertyn & B Goldblatt ‘Facing the challenge of transformation: Difficulties in the development of an indigenous jurisprudence of equality’ (1998) 14 SAJHR 248 at 250.

[14] Ibid.

[15] M Pieterse ‘What do we mean when we talk about transformative constitutionalism?’ (2005) 20 SAPR/PL 155 at 164 (Pieterse argues that the 1996 Constitution has the potential to realise transformation).

[16] Klare op cit note 11 at 152. See Sanford Lakoff ‘Tocqueville, Burke, and the origins of liberal conservatism’ (1998) 60 The Review of Politics 435 at 461 (the term ‘liberal conservatism’ first pioneered by Alexis de Tocqueville and Edmund Burke has been understood as an alliance between two opposing political concepts, that being, the recognition of individual liberty and the structural imposition of a conservative social order).

[17] C Albertyn ‘Substantive equality and transformation in South Africa’ (2007) 23 SAJHR 253 at 276.

[18] Ibid at 276.

[19] President of the Republic of South Africa v Hugo 1997 (4) SA 1 (CC); Masiya v Director of Public Prosecutions 2007 (5) SA 30 (CC); Volks NO v Robinson 2005 (5) BCLR 446 (CC); Jordan v The State 2002 (6) SA 642 (CC).

[20] Albertyn op cit note 17 at 276.

[21] C Albertyn & D Davis ‘Legal realism, transformation and the legacy of Dugard’ (2010) 26 SAJHR 188 at 211.

[22] D Davis ‘Transformation: The constitutional promise and reality’ (2010) 26 SAJHR 85 at 87.

[23] Ibid at 99.

[24] Ibid.

[25] Albertyn & Davis op cit note 21 at 276.

[26] P De Vos ‘From heteronormativity to full sexual citizenship?: Equality and sexual freedom in Laurie Ackermann’s constitutional jurisprudence’ (2008) Acta Juridica 254 at 271.

[27] Ibid.

[28] Ibid at 259.

[29] 2000 (2) SA 1 (CC).

[30] De Vos op cit note 26 at 270-1.

[31] 1999 (1) SA 6 (CC).

[32] De Vos op cit note 26 at 263-4.

[33] Davis op cit note 22 at 87.

[34] Klare op cit note 11 at 18 (the conservative legal culture is seen as a legal constraint in effecting fundamental transformation).

[35] Davis op cit note 22 at 87 (Davis explains that the political culture of society is inherently conservative as it seeks to influence the transformative project).

[36] De Vos op cit note 26 at 257 (the hierarchical hetero/homo binary connotes that heterosexuality is superior to homosexuality. Such is reinforced by the all-pervasive heteronormative which entrenches the hetero/homo binary).

[37] J Butler ‘Critically queer’ (1993) 1 A Journal of Lesbian and Gay Studies 17 at 21.

[38] Ibid at 18.

[39] Ibid at 22 (Butler explains that the process of ‘gendering’ is ‘the embodying of norms, a compulsory practice, a forcible production…’.). See also J Butler ‘Performative acts and gender constitution: An essay in phenomenology and feminist theory’ (1988) 40 Theatre Journal 519 at 523 (Butler states that ‘the body becomes its gender through a series of acts which are renewed, revised, and consolidated through time’).

[40] Ibid at 18.

[41] Butler op cit note 37 at 23 (Butler uses the example of a girl, who through public discourse, has been cited as being a girl, and is compelled to cite and act accordance with this citation appropriated by discourse).

[42] Ibid.

[43] Ibid at 24. See also Butler op cit note 39 at 524.

[44] Butler op cit note 37 at 23 (Butler explains that these acts are regarded as hyperbolic performances of the ‘discursive conventions’ that seek to reject the performative institutions that create gender. These performances are categorised by the performative as ‘theatre’, as it cannot be real within gender performativity.)

[45] J Butler ‘Performativity, precarity and sexual politics’ (2009) 4 Revista de Antropología Iberoamericana i at iv (Butler provides that the subject who is misrecognised will then experience forms of ‘precarity’, that is, harm that flows from the misrecognition). See also Fraser op cit note 8 at 17 (Fraser argues, where there is break in the status order, ‘misrecognition’ occurs).

[46] J Butler Undoing Gender 1 ed (2004) 74.

[47] Butler op cit note 37 at xii.

[48] Ibid.

[49] Ibid.

[50] Ibid.

[51] Ibid.

[52] Butler op cit note 39 at 528 (Butler argues that the term ‘performance’ cannot be seen within the same context as performativity, in so far as performance is to be seen as an expressive act, disconnected to performativity. Performance cannot create gender, because it would mean that there is a ‘self’ before public discourse).

[53] Butler op cit note 37 at 23.

[54] Ibid at x (Butler refers to the work of Gayatri Chakravorty Spivak who has used ‘cultural translation’ in explaining that through a global multiculturalist conception of society, new forms of understanding as to the formation of the subject may be created).

[55] Butler op cit note 45 at x.

[56] Ibid at xii.

[57] Ibid.

[58] Butler op cit note 37 at 27.

[59] Butler op cit note 39 at 528.

[60] Butler op cit note 45 at iv. See also Fraser op cit note 8 at 17.

[61] Butler op cit note 39 at 527.

[62] Visser & Picarra op cit note 1 at 508 (Visser & Picarra use the term ‘transgenderism’ to connote the being of a transgender person).

[63] Constitution of the Republic of South Africa, 1996.

[64] Pieterse op cit note 15 at 164.

[65] Klare op cit note 11 at 18. See also Davis op cit note 22 at 87.

[66] Davis op cit note 22 at 87.

[67] De Vos op cit note 26 at 271.

[68] Klare op cit note 11 at 152. See also Davis op cit note 22 at 87. See also Albertyn & Davis op cit note 21 at 211.

[69] Butler op cit note 37 at 21.

[70] De Vos op cit note 26 at 271.

[71] Butler op cit note 37 at 23.

[72] Butler op cit note 45 at iv.

[73] Ibid at x.

[74] Vade op cit note 7 at 274.

[75] Ibid.

[76] Ibid at 273.

[77] The word ‘expression’ had been used by Vade in this context, but it has been deliberately substituted by the author, for the word ‘performance’ used by Butler, as the word performance keeps within the tenure that gender is performative, as gender cannot be created by expression or performance of the subject. See Butler op cit note 37 at 23.

[78] Vade op cit note 7 at 276.

[79] Ibid at 282.

[80] Ibid at 276.

[81] Butler op cit note 37 at 23.

[82] Ibid.

[83] Vade op cit note 7 at 276.

[84] Ibid at 274-5.

[85] Butler op cit note 37 at 23.

[86] De Vos op cit note 26 at 271.

[87] Vade op cit note 7 at 274.

[88] Ibid at 273-4.

[89] Each planet within the gender galaxy should be seen as a political community with its own set of norms and conceptions of social, economic, religious and political structures.

[90] Butler op cit note 45 at xii.

[91] Ibid.

[92] De Vos op cit note 26 at 271 (De Vos points out, that only ‘good’ homosexuals that adhere to the heteronormative of accepted gay public expression will ‘pass’ or be accepted within heteronormative society).

[93] Butler op cit note 37 at 21.

[94] Vade op cit note 7 at 274.

[95] Vade op cit note 7 at 274.

May 2, 2016
How to Cite
HERMAN, Charl. Towards a Gender Galaxy Normativity. Inkundla, [S.l.], may 2016. Available at: <>. Date accessed: 29 june 2017.