Lesbian, gay, bisexual and transgender (LGBT) people in South Africa enjoy the same rights as non-LGBT people. South Africa has a complex and diverse history regarding the human rights of LGBT people. The legal and social status of between 400,000–over 2 million[1] lesbian, gay, bisexual, transgender and intersex South Africans 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. LGBT people enjoy constitutional and statutory protections from discrimination in employment, provision of goods and services and many other areas.
Nevertheless, LGBT South Africans, particularly those outside of the major cities, continue to face some challenges, including 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.[2][3][4]A 1969 amendment to the Immorality Act prohibited men from engaging in any erotic conduct when there were more than two people present.[5] 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. Since 16 December 2017, all provisions that discriminate have been formally repealed.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.[6]
Apartheid era
Under South Africa's ruling National Party from 1948 to 1994, 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.[7]
Despite state opposition, several South African gay rights organisations formed in the late 1970s. 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 Organisation was multi-racial and founded in opposition to apartheid.[8][9] In the country's 1987 general election, GASA and the gay magazine Exit endorsed the National Party candidate for Hillbrow, Leon de Beer. The campaign brought to a head the tensions between LGBT activists who overtly opposed apartheid and those that did not. 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).[10]
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 sex reassignment surgery.[11] The treatment of gay and lesbian soldiers in the South African military was explored in a 2003 documentary film, titled Property of the State.
In 1993, the African National Congress, in the Bill of Rights, endorsed the legal recognition of same-sex marriages,[12] 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.[13] 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.
Template:Flag entry
The gay pride flag of South Africa is a gay pride symbol that aims to reflect the freedom and diversity of the South African nation and build pride in being an LGBT South African.[14][15][16][17] Designed by Eugene Brockman,[18][19] the flag is a hybrid of the LGBT rainbow flag and the South African national flag launched in 1994 after the end of the apartheid era.[20] Brockman said "I truly believe we (the GLBT community) put the dazzle into our rainbow nation and this flag is a symbol of just that".[14] The stated purposes of the flag include celebrating legal same-sex marriage in South Africa and addressing issues such as discrimination, homophobia and the corrective rapehate crime.[21]
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.[22] 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.[23]
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.[24] Not all ANC members supported the new law. Former 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."[25]
Legal rights
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.[26] 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 MP Sango Patekile Holomisa, who is also president of Contralesa. The parliamentary caucus of the ruling African National Congress rejected the proposal.[27]
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.[28] The Constitutional Court confirmed this judgment on 9 October of the same year.[29] The ruling applied retroactively to acts committed since the adoption of the Interim Constitution on 27 April 1994.[30]
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.[31] 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.[32]
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.[33] 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 recognised 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.
Discrimination protections
LGBT flag map of South Africa
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.[34][35]
Prevention and Combating of Hate Crimes and Hate Speech Bill
The Prevention and Combating of Hate Crimes and Hate Speech Bill, which is pending within the South African Parliament, would outlaw hate crimes and hate speeches on grounds of race and sexual orientation, among others, if enacted. Public consultation on the bill was held between October and December 2016.[36] Many legal experts believed the bill was unconstitutional as it infringed on freedom of speech.[37]Human Rights Watch similarly expressed concerns, saying the bill was too vague and threatened freedom of speech.[38] As such, provisions dealing with hate speech were significantly changed. The bill now reads: "The qualifying criteria for hate speech must now include a clear intention to be harmful or to incite harm or promote or propagate hatred on the basis of age, albinism, birth, colour, culture, disability, ethnic or social origin, gender or gender identity, HIV status, language, nationality, migrant or refugee status, race, religion, or sex, which includes intersex or sexual orientation". The Cabinet approved the bill in March 2018. It must now pass both chambers of Parliament before becoming law.[39]
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.[40] In April 2014, then Minister of JusticeJeff 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.[41][42][43]
Adoption and parenting
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.[44] 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.[45] 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.[46]
In 1997, artificial insemination, which was previously limited to married women, was made legal for single women including lesbians.[44] 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.[47]
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."[48] 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.[49] In 2002, the SANDF extended spousal medical and pension benefits to "partners in a permanent life-partnership".[49]
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".A South African gay pride flag flown at Cape Town Pride 2014.
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.[53]
There have been a number of cases in which gay women have been the victims of murder, beating or rape.[54][55][56] This has been posited, in part, to be because of the perceived threat they pose to traditional male authority.[57] 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.[58]
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.[59] As with female victims, gender non-conforming gay men are thought to be at the highest risk of violence,[57] 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.[60][61]
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.[62] Cultural, arts, sports and outdoor activities play a major part in everyday South African gay life. Annual Gay Pride events are held in Cape Town, Johannesburg, Durban and Pretoria (founded in 2013[63]).[64] Smaller cities such as Bloemfontein, Polokwane, Port Elizabeth, East London, Pietermaritzburg and Knysna, too, cater for gay people.[65]Knysna hosts the yearly Pink Loerie Mardi Gras, which attracts gay people from all over the country.[66]
Portrayal and representation in the media and society
Television and film produces programmes which also focus on gay life.
Soap operas seem to be a space that showcases LGBT life, some of the more notable have been the long-running and now cancelled soap opera Egoli which featured a long-term gay relationship.[67]
SABC 1 has shown itself to be comparatively representative of the LGBT community in South Africa in its programming. The sitcomCity Ses Top La features a gay character for which Warren Masemola received a SAFTA Award. One of the highest rated soap operas on SABC 1 to feature LGBT characters, and noted for it, was Generations, with the characters of star-crossed lovers Senzo (played by Thami Mngqolo) and Jason; who later married and had a child. In the soap opera's current reincarnation as Generations:The Legacy there is a transgender woman character by the name of Wandile and her host of LGBT friends and associates. The telenovelaUzalo also features a gay character by the name of GC, who was embroiled in a church dispute about his sexuality, illustrating the rural and urban demographic perceptions about sexuality in South Africa. The channel has also seen other successes in shows with LGBT characters such as Society; Intersexions; and After 9 amongst others. Other soap operas to feature major LGBT characters have been: Steve (played by Emmanuel Castis) was gay in Isidingo: The Need; Thula (played by Wright Ngubeni) was gay in Rhythm City; Jerome (played by Terrence Bridget a gay actor) was gay in 7de Laan; Scandal has also had a major character Jaco in its first couple of seasons. The 2016 Mzansi Magic telenovela The Queen features Sello Maake ka Ncube playing a gay character.
South Africa, due to its reputation as Africa's most gay-friendly destination, attracts thousands of LGBT tourists annually.[68] The official South African Tourism site offers in-depth travel tips for gay travellers.[69] Gay-friendly establishments are situated throughout South Africa and may be found on various gay travel websites.
Pink Rand
LGBT professionals are employed at major companies throughout the country. LGBT people are also targeted through various marketing campaigns, as the corporate world recognises the value of the Pink Rand. In 2012, Lunch Box Media undertook market research (Gay Consumer Profile) finding the LGBT market to comprise approximately slightly above 4 million people.
Religion
Prominent religious leaders have voiced their support for the South African LGBT community. In the Anglican Church of Southern AfricaArchbishop Emeritus of Cape Town Desmond Tutu[70] and the current Archbishop of Cape TownThabo Makgoba, and Dr. Allan Boesak of the Uniting Reformed Church[71] 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.[72]
Public opinion
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 behaviour is always wrong, compared to 8% who said that it is not wrong at all.[73] In a 2013 survey, 61% said society should not accept homosexuality.[74]
However, a major study conducted by "The other foundation" and titled Progressive Prudes painted a more complex picture of public opinion in South Africa towards LGBT people. While 72% reported believing that same-sex sexual activity was morally wrong, 55% indicated they would "accept" a gay family member and 51% stated their belief that "gay people should have the same human rights as all other citizens".[75] The survey found that, by a 2:1 ratio, South Africans supported retaining existing constitutional protections towards gay people. Those who "strongly disagree" with allowing equal civil marriage rights for same-sex couples declined to just 23%.
A large survey released by Afrobarometer in 2016 suggested South Africa had the second-most tolerant views towards gay neighbours in Africa, after Cape Verde, with 67% of those surveyed reporting that they would either "strongly like, somewhat like or not care" if they lived next to a same-sex couple. This contrasted with the Africa-wide average of 21% and lows of just 3% in Senegal and 5% in Uganda and Niger.[76]
According to a 2017 poll carried out by ILGA, 67% of South Africans agreed that gay, lesbian and bisexual people should enjoy the same rights as straight people, while 17% disagreed. Additionally, 72% agreed that they should be protected from workplace discrimination. 24% of South Africans, however, said that people who are in same-sex relationships should be charged as criminals, while a majority of 57% disagreed. As for transgender people, 72% agreed that they should have the same rights, 74% believed they should be protected from employment discrimination and 64% believed they should be allowed to change their legal gender.[77]
Additionally, according to that same poll, 9% of South Africans would try to "change" a male neighbour's sexual orientation if they discovered he was gay, while 72% would accept and support him. 8% would try to "change" a female neighbour's sexual orientation, while 76% would accept her as she is.
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)
Recognition of adoption for single people regardless of sexual orientation
Stepchild adoption by same-sex couples
(Since 2002)
Joint adoption by same-sex couples
(Since 2002)
LGBT 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
^Burchell, Jonathan; Milton, John (1991). Principles of Criminal Law (1st ed.). Cape Town: Juta. pp. 571–572.
^Milton, John (1996). South African Criminal Law and Procedure: Common-law crimes (3rd ed.). Cape Town: Juta. pp. 223–228. ISBN978-0-7021-3773-0.
^Botha, Kevan; Cameron, Edwin (1997). "South Africa". In West, Donald J.; Green, Richard (eds.). Sociolegal Control of Homosexuality: A Multi-Nation Comparison. New York: Plenum Press. pp. 23–26. ISBN0-306-45532-3.
^"Archived copy". Archived from the original on 19 March 2015. Retrieved 2 April 2015. ((cite web)): Unknown parameter |deadurl= ignored (|url-status= suggested) (help)CS1 maint: archived copy as title (link)
^Berry, Bruce (25 January 2011). "Gay flag in South Africa". FOTW. Archived from the original on 6 March 2013. Retrieved 21 July 2014. ((cite web)): Unknown parameter |deadurl= ignored (|url-status= suggested) (help)
^"Archived copy"(PDF). Archived from the original(PDF) on 1 June 2014. Retrieved 4 December 2016. ((cite web)): Unknown parameter |deadurl= ignored (|url-status= suggested) (help)CS1 maint: archived copy as title (link)
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