Report of the Portfolio Committee on Justice and Constitutional Development on the Promotion of Equality and Prevention of Unfair Discrimination Amendment Bill [B 41 - 2002] (National Assembly - sec 75), dated 25 September 2002:
The Portfolio Committee on Justice and Constitutional Development, having considered the subject of the Promotion of Equality and Prevention of Unfair Discrimination Amendment Bill [B 41 - 2002] (National Assembly - sec 75), referred to it and classified by the Joint Tagging Mechanism as a section 75 Bill, reports the Bill with amendments [B 41A - 2002], and endorses the classification of the Bill as a section 75 Bill.
The Committee wishes to report further, as follows:
1. The Equality Review Committee, established in terms of section 32 of the Promotion of Equality and Prevention of Unfair Discrimination Act, 2000 (Act No. 4 of 2000), must, among others, submit regular reports to the Minister on the operation of the Act, including recommendations on any necessary amendments to the Act to improve its operation. The establishment of the Equality Review Committee was a conscious decision of the Legislature, which was informed by the deliberations of the Ad Hoc Joint Committee on Promotion of Equality and Prevention of Unfair Discrimination Bill. The question has, however, been raised in various quarters about the continued existence and feasibility of the Equality Review Committee due to the financial implications involved, and since Parliament already fulfils an oversight function. The Department is requested to investigate and report back to Parliament, by the end of February 2003, on the feasibility and viability of the Equality Review Committee, bearing in mind the financial and other scarce resources it uses, and to address the matter appropriately, including the introduction of legislation, if necessary. Relevant parties, specifically the South African Human Rights Commission, must be consulted in this regard.
2. It has come to the Committee's attention that there is concern that the usual exclusively dichotomous understanding given to the words "sex" and "gender" could carry over into the law and that it could be argued that "intersexual" individuals or those "intersexual" individuals whose gender roles are changed, potentially remain unprotected. The Committee is of the view that the equality clause in the Constitution was never intended to exclude any vulnerable groups, and that it may be necessary to include "intersexuality" by stipulation in the Promotion of Equality and Prevention of Unfair Discrimination Act, 2000, thereby ensuring that the definition of "sex" in law explicitly includes "intersexuality".
The Department is requested to investigate this concern and address it in an appropriate manner, including the introduction of appropriate legislation, if necessary. The Department is requested, during its investigation, to consult broadly, including the South African Law Commission, and to report back to Parliament by the end of February 2003.