Equality around sexual orientation and gender identity in South Africa – still a pipe dream?

Posted on April 09, 2015

When he opened the 13th Out in Africa Gay and Lesbian Film Festival in March 2007, the Deputy Chief Justice of the Constitutional Court, Dikgang Moseneke, said three important things.

Firstly, ‘we have to acknowledge the long history in this country, and indeed in many other countries around the world, of the marginalisation and persecution of gays and lesbians.’ Secondly, there is ‘a need to remind our people that we need a radical departure from the past, one that is not limited to race but includes family relations – this is a rejection of patriarchy.’ Thirdly, ‘we have committed to turn our back on all those things that seek to impede the fullness of each one of us and we should steadfastly continue to do so.’

These words speak to the essence of South Africa’s constitution, particularly the Equality Clause, which outlaws discrimination on the basis of sexual orientation. By the inclusion of this clause, the human rights of persons who identify themselves as lesbian, gay, bisexual, transgender and intersex (LGBTI) can, on paper at least, be deemed protected.

This means that anyone who practices same-sex sexuality, or who has a non-normative gender expression or an alternative gender identity should be protected from denial of their basic human rights, including various forms of social exclusion, stigmatising social attitudes that constitute a form of symbolic violence, as well as actual attacks (ranging from verbal to physical), because their practices, appearance and/or identity are seen as an affront to acceptable norms.

Yet crimes against LGBTI persons continue to be committed in contemporary South Africa. Assaults, rapes and murders of lesbian women remain disturbingly commonplace. Seen against a backdrop of high levels of gender-based violence and intimate femicide in the broader society, they speak of a society at war with itself.

While the roots of homophobia (a fear of, or antipathy towards people who practise same-sex sexuality) and related transphobia (a fear of, or antipathy towards gender variant  persons) are complex, in essence they reflect a hetero-patriarchal worldview (linking heterosexuality and clear and rigid binaries of acceptable male and female behaviour and appearance with beliefs around male entitlement and power), which is bad for LGBTI  persons, but also for anyone who challenges the patriarchal order, including heterosexual men who eschew conventional forms of masculinity and all women who demand equality.

This homophobia, as Ugandan human rights defender, Professor Sylvia Tamale of Makerere University, noted recently in a public lecture at the University of Pretoria, finds expression beyond South Africa through new and specific laws that are harsh and uncompromising. These laws, she argues, do not occur in a vacuum; rather, they reflect a return to cultural and religious fundamentalism in times of economic and political uncertainty. They also reflect both a cynical attack on sexual minorities and persistently patriarchal views on sexual pluralism and the subordination of women.

Professor Tamale could have been writing about South Africa when she wrote of social uncertainty and moral panic as a breeding ground for discomfort and prejudice around sexual and gender minorities and the emancipation of women. Experiences of stigma and discrimination may be hardest for marginalised LGBTI persons. As one Human Rights Watch report noted, ‘the economic and social position of lesbian, gay, bisexual, or transgender  persons in South Africa has a significant impact on their experience … for those who are socially and economically vulnerable, the picture is often grim’. Poor access to justice and lack of knowledge of, or belief in, rights instruments (such as the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000) complicate this picture.

Of course the situation is not entirely bleak, and there is evidence of shifts in social attitudes and practices. But these shifts are neither inevitable nor unidirectional and, as we see from countries to the north of us, vigilance is required to guarantee the human rights and dignity of women and LGBTI persons.

In fact it would be fair to say that, on balance, a sexist, homophobic and transphobic culture still pervades South African society. This explains why activists have argued that the law alone is not enough to address this phenomenon. Along with proper enforcement of our constitutional entitlements, there is a need for a renewed effort to shape public opinion on a range of issues relating to patriarchy, gender and sexuality, along with visible and meaningful leadership from the state. This would counter the view that there is some ambivalence in state actors around the rights of LGBTI persons.

Recent key developments have included the formation of a National Task Team (NTT), under the Ministry of Justice, to develop a National Intervention Strategy to end gender- and sexual orientation-based crimes, as well as an approved Intersectoral Implementation Plan to align parallel and complementary programmes in government and civil society.

These are important initiatives but they may yet get bogged down in politics, funding challenges and the demands of alliance building. Beyond task teams and intervention strategies, there is work to be done, some of it led by government, but much of it by civil society actors who need to hold government accountable in order to make the Equality Clause a reality rather than an ideal.

This would have a positive effect on the dignity and opportunities of South Africans of all genders and sexualities, and could also start a conversation about humanness beyond gender and identity labels. Perhaps this is what Deputy Chief Justice Moseneke meant when he spoke of the ‘fullness of each one of us’.

*Pierre Brouard is the Co-Director of the Centre for Sexualities, Aids and Gender at the University of Pretoria

- Author Pierre Brouard

Copyright © University of Pretoria 2024. All rights reserved.

FAQ's Email Us Virtual Campus Share Cookie Preferences