LGBT rights in South Africa

LGBT rights in South Africa South Africa

Same-sex sexual activity legal? Male legal since 1998
Female never illegal
Age of consent equalised in 2007
Gender identity/expression Change of legal gender permitted since 2003
Military service Allowed to serve openly
Discrimination protections Constitutional and statutory protections (see below)
Family rights
Recognition of
relationships		 Same-sex marriage since 2006
Adoption Joint and step-child adoption since 2002

South Africa has a complex and diverse history regarding LGBT rights. The legal and social status of lesbian, gay, bisexual, and transgender people has been influenced by a combination of traditional South African mores, colonialism, and the lingering effects of apartheid and the human rights movement that contributed to its abolition. South Africa's post-apartheid constitution was the first in the world to outlaw discrimination based on sexual orientation, and South Africa was the fifth country in the world, and the first—and, to date, only—in Africa, to legalise same-sex marriage. Same-sex couples can also adopt children jointly, and also arrange IVF and surrogacy treatments. Nevertheless, LGBT South Africans continue to face considerable challenges, including social stigma, homophobic violence (particularly corrective rape), and high rates of HIV/AIDS infection.

History

Sexual intercourse between men was historically prohibited in South Africa as the common law crimes of "sodomy" and "unnatural sexual offences", inherited from the Roman-Dutch law.[1][2][3] A 1969 amendment to the Immorality Act prohibited men from engaging in any erotic conduct when there were more than two people present.[4] In the 1970s – 1980s, LGBT activism was among the many human rights movements in the nation, with some groups only dealing with LGBT rights and others advocating for a broader human rights campaign. In 1994, male same-sex conduct was legalised, female same-sex conduct never having been illegal (as with other former British colonies). At the time of legalisation, the age of consent was set at 19 for all same-sex sexual conduct, regardless of gender. In May 1996, South Africa became the first jurisdiction in the world to provide constitutional protection to LGBT people, via section 9(3) of the South African Constitution, which disallows discrimination on race, gender, sexual orientation and other grounds. As of 1 January 2008, all provisions that discriminate have been formally repealed. This included introducing an equalised age of consent at 16 regardless of sexual orientation, and all sexual offences defined in gender-neutral terms.

Apartheid era

The apartheid government was hostile to the human rights of LGBT South Africans. Homosexuality was a crime punishable by up to seven years in prison; this law was used to harass and outlaw South African gay community events and political activists.[5]

Despite opposition, several South African gay rights organisations formed in the late 1970s, during the time when the ruling National Party strengthened the national sodomy law in 1976. However, until the late 1980s gay organisations were often divided along racial lines and the larger political question of apartheid. The Gay Association of South Africa (GASA), based in the Hillbrow district in central Johannesburg, was a predominantly white organisation that initially avoided taking an official position on apartheid, while the Rand Gay Organization was founded as being multi-racial and in opposition to the racist political system of apartheid.[6][7] In the 1987 general election GASA and the gay magazine Exit supported the ruling National Party candidate for Hillbrow, Leon de Beer. The campaign brought to a head the tensions between LGBT activists who wanted to side with the ANC and the liberation struggle and those who wanted to focus solely on LGBT rights within apartheid politics. In the wake of the election campaign, GASA declined and was superseded by the Cape Town-based Organisation of Lesbians and Gays Against Oppression (OLGA).[8]

From the 1960s to the late 1980s, the South African Defence Force forced white gay and lesbian soldiers to undergo various medical "cures" for their sexual orientation, including gender reassignment surgery.[9] The treatment of gay and lesbian soldiers in the South African military was explored in a 2003 documentary film, titled Property of the State.

Conservative social attitudes among both white and black populations are traditionally unfavourable to homosexuality; such attitudes have persisted to some degree in post-Apartheid society.

To some extent, the outbreak of the HIV-AIDS epidemic in South Africa, forced LGBT South Africans to reveal their sexual orientation, in order to be able together to fight the spread of the disease and to ensure that those that are infected have access to life-saving medicines.

Post-apartheid era

Same-sex wedding in Langebaan, 2007

In 1993 the African National Congress, in the Bill of Rights, endorsed legal recognition of same-sex marriages,[10] and the interim constitution opposed discrimination on the basis of sexual orientation. These provisions were kept in the new constitution, approved in 1996, due to the lobbying efforts of LGBT South Africans and the support of the African National Congress. As a result, South Africa became the first nation in the world to explicitly prohibit discrimination based on sexual orientation in its constitution. Two years later, the Constitutional Court of South Africa ruled in a landmark case that the law prohibiting homosexual conduct between consenting adults in private violated the Constitution.

In 1998, Parliament passed the Employment Equity Act. The law protects South Africans from labour discrimination on the basis of sexual orientation, among other categories.[11] In 2000, similar protections were extended to public accommodations and services, with the commencement of the Promotion of Equality and Prevention of Unfair Discrimination Act[12]

In December 2005, the Constitutional Court of South Africa ruled that it was unconstitutional to prevent people of the same gender from marrying when it was permitted to people of the opposite gender, and gave the South African Parliament one year to pass legislation which would allow same-sex unions. In November 2006, Parliament voted 230:41 for a bill allowing same-sex civil marriage, as well as civil unions for unmarried opposite-sex and same-sex couples. However, civil servants and clergy can refuse to solemnise same-sex unions.[13] Not all ANC members supported the new law. Current South African President Jacob Zuma was among its most outspoken opponents, claiming in 2006 that "when I was growing up, an ungqingili (Zulu term describing a homosexual) would not have stood in front of me. I would knock him out."[14]

The protection of LGBT rights in South Africa is based on section 9 of the Constitution, which forbids discrimination on the basis of sex, gender or sexual orientation, and applies to the government and to private parties. The Constitutional Court has stated that the section must also be interpreted as prohibiting discrimination against transgender people.[15] These constitutional protections have been reinforced by the jurisprudence of the Constitutional Court and various statutes enacted by Parliament.

In 2012 the Congress of Traditional Leaders of South Africa (Contralesa) filed a draft document calling for the removal of LGBT rights from the Constitution of South Africa. The group submitted a proposal to the Constitutional Review Committee of the National Assembly to amend section 9 of the Constitution; the Committee, at the time, was chaired by Sango Patekile Holomisa MP, who is also president of Contralesa. The parliamentary caucus of the ruling African National Congress rejected the proposal.[16]

Legality of same-sex sexual activity

On 4 August 1997, in the case of S v Kampher, the Cape Provincial Division of the High Court ruled that the common-law crime of sodomy was incompatible with the constitutional rights to equality and privacy, and that it had ceased to exist as an offence when the Interim Constitution came into force on 27 April 1994. Strictly speaking, this judgment only applied to the crime of sodomy and not to the other laws criminalising sex between men, and it was also only binding precedent within the area of jurisdiction of the Cape court. On 8 May 1998, in the case of National Coalition for Gay and Lesbian Equality v Minister of Justice, the Witwatersrand Local Division of the High Court ruled that the common-law crimes of sodomy and "commission of an unnatural sexual act", as well as Section 20A of the Sexual Offences Act, were unconstitutional.[17] The Constitutional Court confirmed this judgment on 9 October of the same year.[18] The ruling applied retroactively to acts committed since the adoption of the Interim Constitution on 27 April 1994.[19]

Despite the decriminalisation of sex between men, the age of consent set by the Sexual Offences Act was 19 for homosexual acts but only 16 for heterosexual acts. This was rectified in 2007 by the Criminal Law (Sexual Offences and Related Matters) Amendment Act, which codified the law on sex offences in gender- and orientation-neutral terms and set 16 as the uniform age of consent.[20] In 2008, even though the new law had come into effect, the former inequality was declared to be unconstitutional in the case of Geldenhuys v National Director of Public Prosecutions, with the ruling again applying retroactively from 27 April 1994.[21]

Anti-discrimination laws

The Constitution prohibits all unfair discrimination on the basis of sex, gender or sexual orientation, whether committed by the government or by a private party. In 2000, Parliament enacted the Promotion of Equality and Prevention of Unfair Discrimination Act (PEPUDA), which restates the constitutional prohibition and establishes special Equality Courts to address discrimination by private parties. The Employment Equity Act and the Rental Housing Act specifically forbid discrimination in employment and housing, respectively.

The PEPUDA also prohibits hate speech and harassment based on any of the prohibited grounds of discrimination. South Africa does not have any statutory law requiring increased penalties for hate crimes, but hatred motivated by homophobia has been treated by courts as an aggravating factor in sentencing.[22][23]

Men who have sex with men are allowed to donate blood, but any prospective donor who has had a new sexual partner (of any gender) in the last six months is deferred from donation.[24]

National Intervention Strategy for the LGBTI Sector

In August 2011 the Department of Justice established a National Task Team (NTT) to address the issue of hate crimes against LGBT people.[25] In April 2014, then Minister of Justice Jeff Radebe launched a National Intervention Strategy for the LGBTI Sector developed by the NTT to address sex-based violence and gender-based violence against members of the community. The NTT has established a rapid response team to attend to unsolved criminal cases as a matter of urgency and produced an information pamphlet with frequently asked questions about LGBTI persons. Radebe stated that the Department of Justice acknowledged the need for a specific legal framework for hate crimes and that the matter would be subjected to public debate.[26][27][28]

Recognition of same-sex relationships

On 1 December 2005, in the case of Minister of Home Affairs v Fourie, the Constitutional Court ruled that it was unconstitutional for the state to deny to same-sex couples the ability to marry, and gave Parliament one year in which to rectify the situation.[29] On 30 November 2006 the Civil Union Act came into force; despite its title it does provide for same-sex marriages. Indeed, the act allows both same- and opposite-sex couples to contract unions, and allows a couple to choose to call their union either a marriage or a civil partnership. Whichever name is chosen, the legal consequences are the same as those under the Marriage Act (which allows only for opposite-sex marriages).

Prior to the introduction of same-sex marriage, court decisions and statutes had recognized permanent same-sex partnerships for various specific purposes, but there was no system of domestic partnership registration. The rights recognised or extended by the courts include the duty of support between partners, immigration benefits, employment and pension benefits, joint adoption, parental rights to children conceived through artificial insemination, a claim for loss of support when a partner is negligently killed, and intestate inheritance. Rights extended by statute include protections against domestic violence and the right to family responsibility leave.

Parenting and adoption

A number of High Court judgments have determined that the sexual orientation of a parent is not a relevant issue in decisions on child custody.[30] In 2002 the Constitutional Court's ruling in Du Toit v Minister of Welfare and Population Development gave same-sex partners the same adoption rights as married spouses, allowing couples to adopt children jointly and allowing one partner to adopt the other's children.[31] The adoption law has since been replaced by the Children's Act, 2005, which allows adoption by spouses and by "partners in a permanent domestic life-partnership" regardless of orientation.[32]

In 1997, artificial insemination, which was previously limited to married women, was made legal for single women including lesbians.[30] In the 2003 case of J v Director General, Department of Home Affairs the Constitutional Court ruled that a child born by artificial insemination to a lesbian couple was to be regarded as legitimate, and that the partner who was not the biological parent was entitled to be regarded as a natural parent and to be recorded on the child's birth certificate.[33]

Military service

LGBT people are allowed to serve openly in the South African National Defence Force (SANDF). In 1996 the government adopted the White Paper on National Defence, which included the statement that, "In accordance with the Constitution, the SANDF shall not discriminate against any of its members on the grounds of sexual orientation."[34] In 1998 the Department of Defence adopted a Policy on Equal Opportunity and Affirmative Action, under which recruits may not be questioned about their sexual orientation and the Defence Force officially takes no interest in the lawful sexual behaviour of its members.[35] In 2002 the SANDF extended spousal medical and pension benefits to "partners in a permanent life-partnership".[35]

Gender transition laws

The Alteration of Sex Description and Sex Status Act allows people to apply to have their sex status altered in the population registry, and consequently to receive identity documents and passports indicating their new sex. The law requires the person to have undergone medical or surgical treatment. Hormone replacement therapy is sufficient and sex reassignment surgery is not required.[36]

A number of Labour Court rulings have found against employers that mistreated employees who underwent gender transition.[37]

Living conditions

Soweto Pride 2012 participants protest against violence against lesbians with a "Dying for Justice" banner and T-shirts which read "Solidarity with women who speak out".

Although the Constitutional and legal system in South Africa theoretically ensure equality, social acceptance is generally lacking, especially outside of urban areas in the eastern half of the country. A 2008 survey found that 84% of South Africans said homosexual sexual behavior is always wrong, compared to 8% who said that it is not wrong at all.[38] In a 2013 survey, 61% said society should not accept homosexuality.[39]

In 1998, the then National Party leader denied accusations that he had paid a man for sex, by stating that he was a Boerseun (farmer's son), implying that homosexuality was not something to be found among Afrikaners. South African gay rights organisations called for an apology.[40]

There have been a number of cases in which gay women have been the victims of murder, beating or rape.[41][42][43] This has been posited, in part, to be because of the perceived threat they pose to traditional male authority.[44] South Africa has no specific hate crime legislation; human rights organisations have criticised the South African police for failing to address the matter of bias motivated crimes. For example, the NGO ActionAid has condemned the continued impunity and accused governments of turning a blind eye to reported murders of lesbians in homophobic attacks in South Africa; as well as to so-called corrective rapes, including cases among pupils, in which cases the male rapists purport to raping the lesbian victim with the intent of thereby curing her of her sexual orientation.[45]

In May 2011, Professor Juan Nel told Amnesty International that according to studies of three of the nine provinces of South Africa, gay men are victims of homophobic sexual assault as frequently as gay women are, and suggested that under-reporting by male victims and the media has created the perception that they are at less risk of the crime.[46] As with female victims, gender non-conforming gay men are thought to be at the highest risk of violence,[44] and activists have accused the police of negligent handling of incidents, including a series of nine allegedly related murders of gay men between 2010 and 2013.[47][48]

Despite the occasional incidents of homophobia, gay people in major urban areas, such as Johannesburg, Pretoria, Durban and Cape Town, are fairly accepted, and all of these cities have a thriving gay nightlife.[49] Cultural, arts, sports and outdoor activities play a major part in everyday South African gay life. Annual Gay pride events are held in both Johannesburg and Cape Town.[50] Smaller cities such as Bloemfontein, Port Elizabeth and East London, too, cater for gay people.[51] Knysna hosts the yearly Pink Loerie Mardi Gras, which attracts gay people from all over the country.[52]

Locally produced television programmes also focus on gay life. The locally produced soap opera Egoli featured a long-term gay relationship.[53]

South Africa, due to its reputation as Africa's most gay-friendly destination, attracts thousands of LGBT tourists annually.[54] The official South African Tourism site offers in-depth travel tips for the gay traveller.[55] Gay-friendly establishments are situated throughout South Africa and may be found on various gay travel websites.

Gay professionals are employed at major companies throughout the country. Homosexuals are also targeted through various marketing campaigns, as the corporate world recognises the value of the Pink Rand.

Prominent religious leaders have voiced their support for the South African LGBT community. Archbishop Desmond Tutu[56][57] and Dr. Allan Boesak[58] are vocal supporters of gay rights in South Africa. Even the conservative Dutch reformed church ruled that gay members should not be discriminated against and could hold certain positions within the church. However, much criticism of the church still exists; a court has ruled against a church congregation for firing a gay musician; the issue provoked much uproar from the gay community and within liberal circles.[59]

Summary table

Same-sex sexual activity legal (Since 1998, retroactive to 1994)
Equal age of consent (Since 2007, retroactive to 1994)
Anti-discrimination laws in employment (Since 1995)
Anti-discrimination laws in the provision of goods and services (Since 1997)
Anti-discrimination laws in all other areas (incl. indirect discrimination, hate speech) (Since 1997)
Same-sex marriage(s) (Since 2006)
Recognition of same-sex couples as de facto couples (Since 1999)
Recognition of same-sex couples as civil partnerships (Since 2006)
Both joint and step adoption by same-sex couples (Since 2002)
Gay people allowed to serve openly in the military (Since 1998)
Right to change legal gender (Since 2003)
Equal access to IVF and surrogacy for all couples and individuals (Since 2003)
MSMs allowed to donate blood (Since 2014)

See also

References

  1. ↑ Goodman, Ryan (2001). "Beyond the enforcement principle: sodomy laws, social norms, and social panoptics" (PDF). California Law Review. 89 (3): 643–740. doi:10.2307/3481180. Retrieved 9 April 2011.
  2. ↑ Burchell, Jonathan; Milton, John (1991). Principles of Criminal Law (1st ed.). Cape Town: Juta. pp. 571–572.
  3. ↑ Milton, John (1996). South African Criminal Law and Procedure: Common-law crimes (3rd ed.). Cape Town: Juta. pp. 223–228. ISBN 978-0-7021-3773-0.
  4. ↑ Botha, Kevan; Cameron, Edwin (1997). "South Africa". In West, Donald J.; Green, Richard. Sociolegal Control of Homosexuality: A Multi-Nation Comparison. New York: Plenum Press. pp. 23–26. ISBN 0-306-45532-3.
  5. ↑ "Gay rights win in South Africa". BBC News. 9 October 1998. Retrieved 23 December 2014.
  6. ↑ Homosexuality under Apartheid. Archived 27 June 2006 at the Wayback Machine.
  7. ↑ Homosexuality and Apartheid
  8. ↑ Conway, Daniel (December 2009). "Queering Apartheid: The National Party's 1987 'Gay Rights' Campaign in Hillbrow". Journal of Southern African Studies. 35 (4): 849–863. doi:10.1080/03057070903313210.
  9. ↑ Homosexuality and the Military
  10. ↑ http://www.anc.org.za/show.php?id=231
  11. ↑ Homosexuality and Labour Laws in South Africa Archived 13 March 2005 at the Wayback Machine.
  12. ↑ Promotion of Equality and Prevention of Unfair Discrimination Act Archived 2 September 2005 at the Wayback Machine.
  13. ↑ Same Sex Civil Marriage
  14. ↑ https://login.thetimes.co.uk/?gotoUrl=http%3A%2F%2Fwww.thetimes.co.uk%2Ftto%2Fnews%2Fpolitics%2F
  15. ↑ De Vos, Pierre (14 July 2010). "Christine, give them hell!". Constitutionally Speaking. Retrieved 12 July 2011.
  16. ↑ "ANC distances itself from gay comments". IOL News. SAPA. 6 May 2012. Retrieved 19 June 2012.
  17. ↑ "South African Court Ends Sodomy Laws". New York Times. 8 May 1998. Retrieved 28 June 2011.
  18. ↑ McNeil, Donald G. (9 October 1998). "South Africa Strikes Down Laws on Gay Sex". New York Times. Retrieved 28 June 2011.
  19. ↑ Reber, Pat (9 October 1998). "South Africa Court Upholds Gay Rights". Associated Press. Retrieved 28 June 2011.
  20. ↑ Tolsi, Niren (11 January 2008). "Is it the kiss of death?". Mail & Guardian. Retrieved 28 June 2011.
  21. ↑ "Consent judgment welcomed". News24. SAPA. 26 November 2008. Retrieved 27 November 2011.
  22. ↑ Hess, Lauren (1 February 2012). "Activists happy with lesbian's killers' sentencing". News24. Retrieved 13 February 2012.
  23. ↑ "Zoliswa Nkonyana murder trial: hate and intolerance cited as aggravating factor in sentencing" (Press release). Triangle Project. 1 February 2012. Retrieved 13 February 2012.
  24. ↑ DeBarros, Luiz (20 May 2014). "SA finally ends gay blood donation ban". Mamba Online. Retrieved 20 May 2014.
  25. ↑ "Team starts work on gay hate crimes". IOL News. SAPA-DPA. 10 August 2011. Archived from the original on 20 July 2014. Retrieved 15 August 2011.
  26. ↑ "National Intervention Strategy for LGBTI Sector 2014" (PDF). Department of Justice and Constitutional Development. Retrieved 20 July 2014.
  27. ↑ "Radebe launches LGBTI violence programme". IOL. SAPA. 29 April 2014. Archived from the original on 20 July 2014. Retrieved 20 July 2014.
  28. ↑ Diale, Lerato (30 April 2014). "Plan to combat gender violence". The New Age. Archived from the original on 20 July 2014. Retrieved 20 July 2014.
  29. ↑ "Parliament ordered to allow gay marriage". Mail & Guardian. 1 December 2005. Retrieved 10 July 2011.
  30. 1 2 Isaack, Wendy (2003). "Equal in Word of Law: The Rights of Lesbian and Gay People in South Africa". Human Rights. ABA Publishing. 30 (3): 19–22. Retrieved 13 May 2013.
  31. ↑ "Lesbians, gays can adopt children". News24. 10 September 2002. Retrieved 15 August 2011.
  32. ↑ Donelly, Lynley (2008). "A Media Guide to the Children's Act 38 of 2005" (PDF). Centre for Child Law; Media Monitoring Project. p. 40. Retrieved 15 August 2011.
  33. ↑ "Lesbians' twins 'legitimate'". News24. 28 March 2003. Retrieved 15 August 2011.
  34. ↑ "White Paper on National Defence for the Republic of South Africa: Defence in a Democracy". Government of South Africa. 8 May 1996. Archived from the original on 16 June 2011. Retrieved 16 July 2011.
  35. 1 2 Belkin, Aaron; Canaday, Margot (2010). "Assessing the integration of gays and lesbians into the South African National Defence Force" (PDF). Scientia Militaria. Stellenbosch University. 38 (2): 1–21. doi:10.5787/38-2-87. Retrieved 28 July 2013.
  36. ↑ "Changing your name and gender in your identity document: the Alteration of Sex Description Act 49 of 2003" (PDF). Gender Dynamix. Retrieved 29 September 2013.
  37. ↑ Rheeder, Johanette. "Unfair Discrimination Against Transsexuals". Retrieved 3 July 2013.
  38. ↑ Smith, Tom W. "Cross-national differences in attitudes toward homosexuality" (PDF). Charles R. Williams Institute, UCLA School of Law. Retrieved July 1, 2013.
  39. ↑ Pew Research Global Attitudes Project. "The global divide on homosexuality: greater acceptance in more secular and affluent countries". Pew Research. Retrieved July 1, 2013.
  40. ↑ National Party Member and Homosexual allegations Archived 10 May 2006 at the Wayback Machine.
  41. ↑ Only Protected on Paper, Behind the Mask, April 2011
  42. ↑ Thirteen-year-old the latest victim of ‘corrective rape’, Erna van Wyk, City Press, 5 May 2011
  43. ↑ Hannah Osborne (9 July 2013). "Johannesburg: Lesbian Duduzile Zozo Murdered With Toilet Brush in 'Corrective Rape' Hate Crime". International Business Times. Retrieved 28 July 2013.
  44. 1 2 Rape – New Weapon against SA Lesbians
  45. ↑ Archived 20 March 2009 at the Wayback Machine.
  46. ↑ https://www.amnesty.org/en/library/asset/AFR01/001/2013/en/9f2d91b7-bc0e-4ea7-adae-7e51ae0ce36f/afr010012013en.pdf
  47. ↑ Ninth Gay Man Killed in Suspected Serial Murders in South Africa
  48. ↑ South Africa Ignoring a Serial Killer Targeting Gay Men?
  49. ↑ Johannesburg Gay Life
  50. ↑ List of gay activities in South Africa
  51. ↑ Gay activities in Free State and other towns
  52. ↑ Pink Loerie Official Website Archived 25 March 2008 at the Wayback Machine.
  53. ↑ Interview with Egoli Star
  54. ↑ Gay Safari's in South Africa.
  55. ↑ South Africa Tourist Information
  56. ↑ "Desmond Tutu: "Homophobia equals apartheid"". afrol News. 7 July. Retrieved 28 July 2013. Check date values in: |date= (help)
  57. ↑ "Archbishop Tutu 'would not worship a homophobic God'". BBC News. 26 July 2013. Retrieved 28 July 2013.
  58. ↑ Boesak's view on gay rights Archived 15 October 2006 at the Wayback Machine.
  59. ↑ Dutch Reformed Church ordered to pay damages to gay musician

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