By Cause For Justice
On February 25 the High Court in Cape Town admitted four additional amici curiae (friends of the court) to a case on gender transition in Western Cape public schools.
Cause for Justice (CFJ), First Do No Harm Southern Africa (FDNHSA) and Doctors for Life (DFL) were admitted as amici curiae alongside a Professional Association for Transgender Health South Africa (PATHSA). The case, in which the applicants are seeking far-reaching court intervention that would have a coercive impact on public schools in the province, is scheduled to be heard from October 12 to 16.
Recent developments
On Monday February 23 the Western Cape High Court heard applications by the four organisations to be admitted as amici curiae in a matter about cross-sex/gender treatment of learners identifying, and wanting to express themselves socially, as if they were of the sex/gender that they are not. The school, Stellenbosch High School, is accused of allegedly having unfairly discriminated against a learner during the second half of 2020 by not agreeing to certain accommodations that would have allowed the learner to be treated as the other sex/gender.
CFJ’s joinder application was unopposed, as was that of PATHSA. The applications of FDNHSA and DFL faced opposition from the applicants in the main matter.
Before the commencement of the court proceedings on February 23, the applicants in the main matter approached the parties with a settlement proposal which would allow all four parties to join the matter, with certain limitations to the scope of the evidence to be brought by FDNHSA and DFL.
After a full day of negotiations between the parties’ legal teams, one contested point remained. The parties brought this point of contention before judges Holderness and Pangarker, which was then argued in open court. The court proceedings were concluded with the judges reserving their judgment. The order admitting all four parties, with a minor scope limitation on evidence that may be adduced by FDNHSA and DFL, was made on February 25. (Two other parties, Fedsas and Gender Dynamix, had already been admitted as friends of the court shortly after the case commenced at the end of 2023.)
Background to the main case
In addition to a declaration of unfair discrimination and harassment, and payment of damages for harm suffered, the applicants seek a court order that –
- a circular of the findings of the matter be sent to all Western Cape schools.
- the school amends its code of conduct to make provision for the reasonable accommodation of learners’ gender identity and gender expression.
What CFJ’s admittance as amicus curiae means
By having been admitted as a party to the case, CFJ will be able to make submissions going to the core of the case – namely whether a whole school community may be forced to conform to one individual’s self-perception that he/she has a true internal/psychological identity that is the opposite of his/her bodily or biological reality.
CFJ intends making submissions regarding the ideological nature of trans/gender identity theory which would otherwise not have been considered by the court, as well as submissions on the true meaning of “gender” and the best interests of children in these matters. Through CFJ’s school policy development work with a number of schools, it has become convinced that learners with gender dysphoria can be reasonably accommodated in ways that can assist with the alleviation of their gender distress, without forcing schools to adopt ideologies such as trans/gender identity theory.
What happens next
The court hearing of the merits of the matter is scheduled for October 12 to 16 in the Western Cape High Court. As exchange of pleadings has closed, the next six months in the lead-up to the court hearing will be dedicated to the preparation and submission of expert witness testimony, and preparation and exchange of written legal submissions (heads of argument).
The parties are currently negotiating timelines for the interim steps to bring the case to a state of readiness for hearing.
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