Transgender pilot Kailer Smit is gearing up for a legal showdown with the SA Civil Aviation Authority (SACAA) after they grounded him because of “a history of gender-affirming treatment”.
Medical experts have rallied to his defence, citing the move as a blatant violation of anti-discrimination legislation.
Smit, 32, an experienced flight instructor who has flown close to 2,500 hours, trained dozens of commercial pilots and delivered tonnes of aid to countries in crisis, was grounded after his latest medical in January. Two appeals have been unsuccessful and a third is pending.
He told the Sunday Times this week the situation had forced him to “out” himself publicly and declare his status as a transgender man.
Smit said that if he wins his third appeal and is allowed to return to the humanitarian work he loves, he will be risking his life flying aid missions to countries where being transgender is not only outlawed but carries the death sentence.
“And now, for some hope of retribution, I have to out myself. Where is the justice?” he asked, describing the aviation authority's stance as “purposely digging in against me”.
Smit said he was in the process of lodging two lawsuits. One will challenge the SACAA’s administrative process as it relates to medicals. The other will raise the numerous violations he has suffered to his constitutional rights, such as privacy, dignity and employment.
Smit has been on a weekly dose of testosterone since 2017 and disclosed the situation to the SACAA before he started the treatment. He was cleared for the use of testosterone as allowed in terms of his licence.
There is no medical reason under the sun to ground pilots because they are receiving testosterone
— Public healthcare expert Prof Elma de Vries
But after five years of being consistently evaluated and experiencing no instability or side effects, Smit was grounded on January 30. The reason, said the SACAA, was: “The medical evidence reveals a history of gender affirmation treatment. Based on the complete review of the available medical evidence, the panel found you to be medically temporarily unfit to exercise the privileges of the class of licence you applied for.”
After his requests for clarity, senior aviation medical assessor Dr Fatima Alli wrote that “given hormonal therapy and its effects, there is a possibility of mood changes and personality traits that could be of concern” and that “a follow up psychologist report is required to ascertain presence or absence of a diagnosis and determine whether the applicant is fit to fly as a pilot”.
Approached for comment by the Sunday Times this week, SACAA spokesperson Sisa Majola said they were prevented by law from naming pilots or disclosing medical information.
But Majola confirmed the case and that the decision taken had been reviewed and was “in line with applicable regulations and protocols as well as international best practice”.
Smit said he had been declared “safe to fly” by two independent psychologists and had a solid history of no psychological instability or incapacitation.
The treatment is “a measly 0.4ml weekly injection of depo-testosterone, closely monitored by a skilled healthcare professional, something that has been happening for more than half a decade and even those who revoked my licence are agreed on this,” said Smit.
During his string of appeals Smit was sent for a battery of medical tests, at his own cost. He says he passed, submitted the report and was told that the panel evaluating his case had sent him the wrong assessment, so he had to do another one.
“I emailed 38 psychiatrists and only two agreed to help me,” he said, citing unavailability, inability to administer the required battery of tests and, in one case, a refusal to administer tests for a condition “that is not a disorder”.
Public healthcare expert Prof Elma de Vries told the Sunday Times: “I would love to know what the SACAA's ‘international best practice’ is, because I was involved in drawing up the latest guidelines and know for a fact that nowhere does it say that gender-affirming treatment can affect performance in any profession in the world.”
De Vries, who is based at the Nelson Mandela University’s medical school, was part of the Groote Schuur Hospital transgender clinic team that succeeded in having the health department include gender-affirming hormone treatment included in the essential medicines list from 2019.
She is a founding member and secretary for the board of the Professional Association for Transgender Health in South Africa (Pathsa) as well as a member of the World Organisation of Family Doctors’ Special Interest Group on LGBTQ+ Health.
“There is no medical reason under the sun to ground pilots because they are receiving testosterone. The levels given to them are the same as someone assigned male at birth. If that is the argument, then no male on earth should be allowed to fly,” De Vries said.
Her sentiments were echoed by Pathsa chair Chris McLachlan, who said instability and mood swings were not associated with gender affirming hormones.
“When treatment is initiated there can be some small fluctuations, but ... mood changes would fall within normal range and definitely not fill the criteria of a mental health disorder,” he said.
Researcher Kellyn Botha, author of a 2021 report titled Our Identities Under Arrest on the enforcement of criminalising laws in various countries, has been working with the International Lesbian, Gay, Bisexual, Trans and Intersex Association (ILGA World) to draw up a global database on LGBTI+-relevant legislation.
“This appears to be a blatant violation of anti-discrimination legislation. Medical intervention as grounds for suspension goes against best practice in terms of aviation policy,” she said.
Parker Morgan and Kori Necker, co-chairs of the trans and nonbinary committee of the National Gay Pilots Association (NGPA) — an international organisation representing LGBTQI+ pilots and aviation enthusiasts around the world — have come out in support of Smit.
“Regardless of the regulator, transgender and nonbinary aviation professionals must meet the same technical proficiency requirements as our cisgender counterparts. However, most civil aviation regulators still maintain either a higher, or second, standard of medical qualification for pilots who seek medical interventions as a part of their transition.
“Unfortunately, cases like Kai's are not uncommon for transgender pilots around the globe.”
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