LGBTQIA+ rights in South Africa

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Lorinda Venter
Miller du Toit Cloete Inc, Cape Town
lorinda@mdtcinc.co.za

South Africa is the only sub-Saharan African country that permits same-sex relationships,^[1] however this was not always the case. ‘In the pre-democratic era in South Africa, same sex-unions were not only denied any form of legal protection, they were regarded as immoral and their consummation by men could attract imprisonment.’^[2] In 1996, a new Constitutional dispensation came into effect, which dramatically altered the situation by stating at section 9(1) that ‘Everyone is equal before the law and has the right to equal protection and benefit of the law’ and at section 9(3) that ‘The state may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth’.^[3] This article will address a brief overview of case law and consequential anti-discrimination legislation that came into effect in South Africa relevant to the development and protection of the rights of LGBTQIA+ individuals, against a backdrop of a long history of marginalisation of individuals based on their sexual orientation.^[4] It further highlights certain areas such as systemic discrimination and social acceptance in need of active progression.

Even though section 9 of the South African Constitution 1996^[5] prohibited discrimination against same-sex partners, they were still precluded from solemnising their relationship and enjoying the same status, benefits and responsibilities that heterosexual couples were afforded in marriage law. In Minister of Home Affairs and Another v Fourie and Another ZACC 19, 2006 (1) SA 524 (CC) the applicant challenged the constitutional validity of the common law definition of marriage and section 30 of the Marriage Act 25 1961 ('Marriage Act') which excluded same-sex couples from getting married.^[6] The Constitutional Court of South Africa held that the provisions were not in line with the Constitution. Sachs J significantly noted in his judgment that,

‘[t]he claim by the applicants in Fourie of the right to get married should, in my view, be seen as part of a comprehensive wish to be able to live openly and freely as lesbian women emancipated from all the legal taboos that historically have kept them from enjoying life in the mainstream society. The right to celebrate their union accordingly signifies far more than a right to enter into a legal arrangement with many attendant and significant consequences, important though they may be. It represents a major symbolical milestone in their long walk to equality and dignity. The greater and more secure the institutional imprimatur for their union, the more solidly will it and other such unions be rescued from legal oblivion, and the more tranquil and enduring will such unions ultimately turn out to be.’^[7]

Accordingly, Parliament was tasked with the assignment to remedy the violation^[8] and it culminated in the birth of the Civil Union Act 17 2006 ('Civil Union Act'), which came into operation on 30 November 2006.^[9] In terms of this Act, same-sex couples may enter into a marriage or a civil partnership of which the requirements for and consequences of, are similar to those afforded to heterosexual couples entering into a marriage.^[10]

This Civil Union Act was a momentous step in the right direction for the development and protection of same-sex partners’ rights, however it still presented with hurdles for same-sex partners that wished to get married. In terms of section 6 of the Civil Union Act, non-religious marriage officers had the right to object to solemnise a marriage between persons of the same sex on the grounds of conscience, religion, and belief.^[11] Statistics showed that 37 per cent of marriage officers objected to solemnising a union between same-sex partners.^[12] Significantly in December 2018, Parliament approved the Civil Union Amendment Bill, which aims to repeal section 6 of the Civil Union Act^[13] in its entirety. It was further proposed that during the transitional period of 24 months, each respective Department of Home Affairs (‘Home Affairs’) should have a marriage officer available to solemnise civil unions between same-sex couples.^[14]

In November 2016, the Constitutional Court handed down a judgment in the case of Laubscher NO v Duplan and Another (CCT234/15) [2016] ZACC 44; 2017 (2) SA 264 (CC) whereby it expressed the continued recognition of intestate inheritance rights adopted in a 2006 judgment by the same court in the matter of Gory v Kolver NO [2006] ZACC 20; 2007 (4) SA 97 (CC); 2007 (3) BCLR 249 (CC), concerning unmarried same-sex life partners’ rights to inherit from the intestate estate of the deceased partner, despite the Civil Union Act enabling same-sex couples to marry.^[15] The Court found that an inequality may exist, as unmarried heterosexual couples did not benefit under the Intestate Succession Act, but held that the legislature had to decide whether to extend the same benefit to unmarried heterosexual partners or to limit the rights of same-sex partners under the aforementioned Act.^[16]

South African courts have been determined in ensuring adequate safeguards for LGBTQIA+ individuals. The following section will give a brief synopsis of recent cases illustrating the courts’ proactive approach in this regard, and briefly discuss the case of Caster Semenya vs the International Associations of Athletics Federations.^[17]

1. Du Toit and Another v Minister of Welfare and Population Development and Others ZACC 20; 2002

This case dealt with the rights of same-sex partners to jointly adopt children. A lesbian couple in a long-term partnership brought an application to jointly adopt two children, a brother and a sister.^[18] They were however prohibited from doing so as the Child Care Act only allowed for joint adoptions by married couples.^[19] The applicants argued that the provisions discriminated against them on the basis of sexual orientation and marital status.^[20] The Court held that the provisions infringed on their constitutional rights and ruled that the legislation has to make provision for same-sex couples to be able to jointly adopt children, if they are found to be suitable parents.^[21]

2. September v Subramoney NO and Others (EC10/2016) [2019] ZAEQC 4^[22]

Jade September is a transgender woman incarcerated in a men’s prison. She brought an application against Subramoney, who was the head of the correctional facility at the time, to be permitted to express her gender identity while in prison based upon her rights to human dignity, equality and freedom of expression. Subramoney argued that they prohibited her from presenting herself as female for her own protection against sexual assault by other inmates. Furthermore, they contended that to the extent that their refusal to allow September to express her gender identity constituted discrimination, it was ‘reasonable and justifiable’ in the circumstances. The Court held that the correctional facilities should inevitably provide a safe environment for all inmates irrespective of their gender or sexual orientation and further, that the respondent’s failure to allow September to express her gender identity constituted unfair discrimination and was unlawful and unconstitutional. The Court ordered the correctional facility ‘to return to September her female underwear make-up and jewelry, to allow her to wear her hair long and in feminine styles and further, to address her as a woman and to use the female pronoun’.^[23]

Another point of contention that was not addressed by the Court in the September case was whether September should have been allowed to undergo medical treatment in order to have gender transitional surgery (GTS) and to enable her to ‘live more fully’ as a woman. The respondent argued that the treatment sought by September constituted cosmetic medical treatment, which the state is not obliged to fund in term of section 12(2) of the Correctional Service Act.^[24]

This may have been the ideal opportunity for the Court to address the issue of whether GTS is to be regarded as cosmetic surgery or reconstructive surgery. If regarded as the latter, it constitutes medical treatment to be funded by the State. It has been reported that individuals that identify as transgender and suffer from gender dysphoria should have access to GTS to align their gender with their physical appearance.^[25] Johann J Go has stated:

‘The clinical rationale for GRS is to alleviate the severe psychological angst the transgender person experiences as a result of their gender identity not aligning with their physical sex. Gender reassignment surgery can reduce or eliminate the psychological distress and is strongly associated with the prevention of suicide which might otherwise be attempted’.^[26]

GTS is generally only affordable by the wealthy. The lack of access to publicly funded gender reassignment surgery and treatment consist, for example, of poor service delivery, heteronormative attitude, conflating gender with sexual orientation, bias and the decentralised healthcare system. It is imperative that policy guidelines and processes are put in place to enable healthcare providers to refer and assist transgender individuals, should they wish, in obtaining GTS.^[27]

3. Zibathini v S(CA & R 99/17) [2019] ZANCHC 30 (19 July 2019)

In this case, the court deals with the issue of corrective rape. Corrective rape is where a man believes that if he rapes/has sexual intercourse with a woman who identifies as a lesbian, he would be able to ‘turn’ her heterosexual.^[28] The occurrence of corrective rape is more prevalent in rural areas.^[29]

This case was an appeal against the conviction and sentence given in the court of first instance. The appellant argued that he used the minimal force of violence and that it was not the worst kind of rape imaginable, in addition, there was no evidence that the complainant had indeed suffered lasting trauma. He further alleged that due to his circumstances and the circumstances surrounding the rape, it justified a more lenient approach in sentencing.^[30] The court held that:

‘The gay and lesbian community are entitled to equal enjoyment of all rights and freedom as entrenched in our Constitution like all other South Africans. They should be treated with dignity and respect. They are entitled to be who they are and express themselves in any manner they wish without fear of being ostracised and violated. The so-called “corrective rape” is evil and cannot be countenanced. Our Courts will continue with their concerted effort to protect the lesbian, gay, bisexual and transgender (LGBT) rights. What the appellant did to the complainant was to pulverise her sense of belonging and self-expression. This is quite repulsive and unpardonable.’^[31]

4. KOS and Others v Minister of Home Affairs and Others (2298/2017) [2017]  ZAWCHC90

This case dealt with the situation where transgender individuals who were married under the Marriage Act, (which provides for marriage being a union between one man and one woman) applied to Home Affairs to alter their sex description on their identification documents. In terms of the Alteration of Sex Description and Sex Status Act 49 2003, transgender individuals are permitted to change their gender from female to male and vice versa. It transpired that Home Affairs refused the applicants’ applications on the basis that the applicants were married under the Marriage Act which Act only applies to heterosexual couples. In another instance, Home Affairs made the alteration, however deleted the marriage particulars of the applicant. Home Affairs argued that in order to affect the alteration of the sex descriptor, the transgender individual was to first obtain a divorce before the amendments would be made on their records.The Court held that the manner in which Home Affairs dealt with the applications were inconsistent with the Constitution and unlawful. The Court further ordered Home Affairs to determine all applications regardless of whether the individual was married in terms of the Marriage Act.^[32]

5. Nandutu and Others v Minister of Home Affairs and Others ZACC 24 2019 (8) BCLR938 (CC)

The applicants, Ilias Demerlis, a Greek citizen and Christakis Fokas Ttofalli, a South African citizen in a permanent same-sex partnership, approached the court to have regulation 9(9)(a) of the Immigration Regulations declared unconstitutional on the basis that it limits their constitutional rights to dignity, as the requirement to change visa status from outside of the Republic impairs the ability of same-sex spouses to honour their obligations to cohabit and support each other.^[33]

Demerlis applied for a spousal visa under section 11(6) of the Immigration Act, before the expiry of his visitor’s visa. Home Affairs rejected the application on the basis that in terms of section 10(6) of the Act, temporary visa holders are not permitted to apply for a change in visa status while they are in South Africa. This entails that they are required to leave South Africa before they could make an application for a spousal visa. The exception as contained in regulation 9(9) which makes it possible for visa holders to apply for a change in visa status while in South Africa did not extend to Demerlis’s circumstances.

The Constitutional Court held that regulation 9(9)(a) was invalid and inconsistent with the Constitution, in that it unjustifiably limits the constitutional right to dignity.

In another matter, Wendy Kessman a US citizen applied to Home Affairs for a spousal visa after she married Nofundo Ngidi, a South African citizen. Her application was rejected twice, which prompted her to apply to court for the necessary relief.^[34] The Court ordered Home Affairs to issue a spousal visa to Kessman. The visa was eventually issued, however it was the incorrect visa, as it did not permit Kessman to work or study in South Africa.^[35]

In my view, a more effective implementation of legal provisions and oversight of policy within Home Affairs is imperative to remedy the inconsistency Home Affairs have demonstrated in fulfilling their prescribed duties.

6. Caster Semenya v international Association of Athletics Federations (IAAF) CAS2018/0/5794 and CAS 2018/0/5798.

Caster Semenya is a South African athlete who won the silver medal at the 2012 Olympics in the women’s 800m race and the gold medal at the 2016 Olympics. However, many around the world do not know her for her exceptional athletic achievements, but rather for the debate surrounding her gender.^[36] In 2009, Semenya was subjected to gender verification tests to ascertain whether she was female. It became known that Semenya had intersex traits. Even 11 years later, the debate in regard to whether she should be entitled to race and compete against other women continues.

On 30 April 2019, the Court of Arbitration for Sport (CAS) handed down judgment with regard to the challenges brought by Semenya and Athletics South Africa (ASA) against the IAAF in relation to the validity of the IAAF’s Eligibility Regulations for the Female Classification (Athletes with Differences of Sex Development) (the ‘DSD Regulation’).^[37] Semenya argued that the DSD regulations imposed by the IAAF unfairly discriminated against athletes on the basis of sex and/or gender because the regulations are only applicable to ‘(i) female athletes and (ii) to female athletes having certain physiological traits.’^[38] They further argued that the DSD Regulations lacked a sound scientific basis, that the regulations are unnecessary to ensure fair competition within the female classification and are likely to cause grave, unjustified and irreparable harm to affected female athletes.^[39]

The CAS held that the DSD regulations were in fact discriminatory, however, that in the circumstances ‘… such discrimination is a necessary, reasonable and proportionate means of achieving the legitimate objective of ensuring fair competition in female athletics in certain events and protecting the “protected class” of female athletes in those events.’^[40] The ruling entails inter alia that Semenya will have to take hormone lowering medication in order to reduce her testosterone levels if she intends to continue partaking in track events between 400m and a mile at international level.^[41] [emphasis added].

The aforementioned cases illustrate the South African Court’s commitment to ensuring that previously disadvantaged individuals such as the LGBTQIA+ community are afforded equal protection and enjoyment of their constitutional rights. It is evident from the cases discussed that the South African judiciary has proactively pursued to remedy the imbalance demonstrated in regard to the human rights of the previously disadvantaged as opposed to their counterparts. However, the discrepancy has widened between the legal protection and remaining systemic discrimination and social acceptance.^[42] In conclusion, the aspects detailed below illustrate that transformation is indeed a gradual and ongoing phenomenon.

Education

In collaboration with academic scholars, the South African Department of Basic Education (DBE) developed and distributed 60,000 copies of Safer Schools for All: Challenging Homophobic Bullying to schools; which provides for guidelines aiming at providing anti-homophobic-bullying material to teachers, students, and administrators.^[43] These guidelines were sought to encourage the eradication of discrimination and prejudice in schools, as well as ensuring that the academic potential of LGBTQI+ students is addressed.^[44] There has been an increase of South African schools accommodating transgender students by allowing students that identify as transgender to be addressed by their desired names, as well as wearing gender neutral uniforms. Certain schools have also been incorporating genderless bathrooms to ensure transgender students are not forced to use a bathroom that does not reflect their gender identity.^[45]

Unfortunately, LGBTQIA+ youth residing in rural areas aren’t having the same positive experiences as LGBTQIA+ students in more urban areas.^[46] More than two-thirds of African countries still view same-sex acts as illegal and evidence suggests that African people are among the least accepting of homosexuality.^[47] According to the ‘Progressive Prudes’ survey of attitudes towards homosexuality and gender non-conformity in South Africa, ‘[a] large majority (about 7 out of 10 South Africans) feel strongly that homosexual sex and breaking gender dressing norms is simply “wrong” and “disgusting”’.^[48] This data acts as an indicator of the predominant attitude toward the LGBTQIA+ community in a country where sexual orientation has been protected by the Constitution for approximately 24 years. In order to alleviate the disparity, it is important that South Africans continue to be educated in regard to LGBTQIA+ issues, which is what the DBE is hoping to achieve.

Refugee asylum seekers

South Africa is hailed as a haven for LGBTQIA+ individuals because of its progressive laws, however, for many LGBTQIA+ asylum seekers in South Africa, the welcoming did not materialise. There have been numerous accounts of LGBTQIA+ refugees who have fled from persecution and violence in their home country, just to be met with the same discrimination in South Africa when told by an immigration official that ‘we don’t want gay people in South Africa’.^[49] Statistics show that 86 per cent of asylum seekers claim to have been required to ‘prove’ that they are gay, and if refused, their asylum application was denied.^[50]

Statistics have further shown that South Africans are more supportive of LGBTQIA+ rights within a human rights framework and not necessarily a familial, cultural or religious frame.^[51]

In conclusion and as stated by Sach J, ‘the law may not automatically and in of itself eliminate stereotypical prejudice. Yet is serves as a great teacher, establishes public norms that become assimilated into daily life and protects vulnerable people from unjust marginalisation and abuse’.[52]