At his inauguration on 20 January 2025, the President of the United States, Donald Trump, espoused some controversial views on transformation. He said:
"This week, I will also end the government policy of trying to socially engineer race and gender into every aspect of public and private life. ... As of today, it will henceforth be the official policy of the United States government that there are only two genders: male and female ... And I will sign an order to stop our warriors from being subjected to radical political theories and social experiments while on duty. It's going to end immediately."
President Trump, known for dialling back diversity, equality and inclusion policy, appears to want to pick up where he left off. During his last administration, President Trump became infamous for his radical anti-DEI rhetoric – particularly when it came to the military. The newly appointed Defence Secretary, Pete Hegseth, has also expressed strong views on diversity and inclusion in the military. Leading up to the election and inauguration, he made negative comments about women in combat roles, saying they should not hold such positions, and criticised diversity and inclusion more broadly.
In an interview in November 2024, he commented on the first changes that should be made in the Trump administration. He said –
"Well first of all you've got to fire the Chairman of the Joint Chiefs, and you've got to fire — I mean obviously you've got to bring in a new Secretary of Defence, but any general that was involved — general, admiral, whatever — that was involved in any of the DEI woke sh*t has got to go."
All signs indicate that President Trump is making good on his promises. However, can involvement in diversity and inclusion be considered a valid reason to terminate employment? In South Africa, it would certainly not be.
The South African legislature has gone to great lengths to promote gender and racial equality and has, in the recent past, made more vigorous attempts to increase the speed of transformation. Dismissing someone for promoting diversity and inclusion in South Africa would not be considered fair, and may potentially be discriminatory, elevating the dismissal to a more egregious category of unfair dismissal – an automatically unfair dismissal. Similarly, dismissing employees for reasons relating to their sex, gender or race would, too, be considered discriminatory and automatically unfair. In fact, uttering discriminatory statements would also be problematic and may amount to harassment or, at the very least, inappropriate conduct warranting disciplinary action.
Is our law perfect though when it comes to diversity and inclusion and especially the recognition of transgender persons? No. South Africa's Employment Equity Act, 1998 (EEA) contains a number of anti-discrimination and affirmative action provisions, including mechanisms for employers to collect and analyse race and gender-related information with a view to reporting on transformation progress in the workplace.
These mechanisms, however, do not cater for those employees who do not identify as being either male or female. The legislated forms and platform used for collecting information and reporting on transformation progress envisage that 100% of the employer's workforce is either male or female.
Gathering and reporting only gender binary information for employment equity may be discriminatory. Forcing individuals who do not identify as male or female to choose a gender for reporting purposes could lead to discrimination. Whilst this was likely an unintended consequence of requiring employers to report on the advancement of females in the workplace, it does leave room for our legislation to be challenged. However, until such time as the EEA is amended, the paradox remains that the very legislation aimed at eliminating unfair discrimination based on sex and gender potentially discriminates against transgender individuals.
South African employers should focus on ensuring that their diversity and inclusion initiatives are approached in a manner that promotes gender equality in its broadest sense – making the work environment an accepting place for all. The importance of leadership in driving these initiatives cannot be overstated. Leaders who are committed to diversity and inclusion set the tone for the entire organisation and can significantly influence organisational culture. By championing these values and holding themselves and others accountable, they can foster an environment where all employees feel valued and respected.
By acknowledging and supporting the unique experiences of transgender individuals, South African employers can make significant strides in gender and diversity initiatives. This involves revising policies and practices to ensure they are inclusive of all gender identities and expressions. For example, employers could implement gender-neutral facilities, use gender-neutral pronouns in their policies, provide training on gender diversity, and establish clear protocols for addressing discrimination and harassment based on gender identity.
In conclusion, while South Africa has made commendable progress in promoting gender and racial equality, there is still work to be done. However, as South Africans, we can be proud of our stance on transformation and continue to lead by example in striving for true diversity and inclusion in the workplace.
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