A deeper understanding of SOGIESC rights in the South African context : does PEPUDA adequately protect the rights of transgender persons?

Abstract

The Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 (PEPUDA) is a cornerstone of South Africa’s anti-discrimination framework, aiming to uphold equality and prevent unfair treatment. However, its capacity to protect transgender individuals is hindered by several lacunae. This article critically examines whether PEPUDA adequately safeguards the rights of transgender persons, exploring the limitations of its current framework in addressing the lived realities and systemic challenges faced by this marginalised community. Drawing on principles of transformative constitutionalism, the article argues for a substantive interpretation of equality that goes beyond formal protections to dismantle entrenched structural inequities. It advocates for legislative reforms aligning PEPUDA with the Constitution’s vision of substantive equality and international human rights standards. By proposing a nuanced legal and interpretive approach, the article seeks to bridge the gap between legislative intent and practical inclusivity, ensuring that transgender individuals can fully enjoy their rights and dignity in a democratic South Africa.