Gay rights in South Africa

South Africa has a diverse history when it comes to the legal and social status of lesbian, gay, bisexual, and transgender (LGBT) people as a result of traditional South African mores, western imperialism, Apartheid and the human rights movement that contributed to the down fall of apartheid. South Africa's post-apartheid constitution was the first in the world to outlaw discrimination based on sexual orientation, and on 1 December 2006 South Africa made history by becoming the fifth country in the world, and the first in Africa, to legalise same-sex marriage.

History

In 1872, Sodomy was a common law crime in South Africa, defined as oral or anal sex between men. A 1957 law prohibited men from engaging in any erotic conduct when there were more than two people present. 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 As of 1 January 2008, all provisions that discriminate have been formally repealed.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

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.

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 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.

From the 1960s to the late 1980s, the South African Defense Force forced white gay and lesbian soldiers to undergo various medical "cures" for their sexual orientation, including sex change operations. 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

In 1993 the African National Congress endorsed legal recognition of same-sex marriages, 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. 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

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. Not all ANC members supported the new law. Current South African President Jacob Zuma was among its most outspoken opponents.

Legal rights

South Africa's Constitution forbids discrimination on the basis of sex, gender or sexual orientation, both by the state and by private parties. The Constitutional Court has indicated that these protections must be broadly interpreted, and that they extend to prohibit discrimination against transgendered people. These constitutional protections have been reinforced by the jurisprudence of the Constitutional Court and various statutes enacted by Parliament.

Legality of same-sex sexual activity

The common-law crimes of sodomy and "commission of an unnatural sexual act" in South Africa's Roman-Dutch law were declared to be unconstitutional (and therefore invalid) by the Witwatersrand High Court on 8 May 1998 in the case of National Coalition for Gay and Lesbian Equality v Minister of Justice, and this judgment was confirmed by the Constitutional Court on 9 October of the same year. The ruling applied retroactively to acts committed since the adoption of the Interim Constitution on 27 April 1994.

Despite the abolition of sodomy as a crime, the age of consent for same-sex activities remained set at 19, whereas for opposite-sex activities it was 16. This was rectified by the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007, which comprehensively reformed the law on sex offences to make it gender- and orientation-neutral, and set 16 as the uniform age of consent. 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, again with retroactivity to 27 April 1994.

Anti-discrimination laws

The equality clause of the Constitution is itself enforceable against the state and private parties. It has been supplemented by the Promotion of Equality and Prevention of Unfair Discrimination Act (PEPUDA), which similarly forbids discrimination on grounds including sex, gender or sexual orientation, and establishes a system of Equality Courts to enforce the prohibition. The Employment Equity Act and the Rental Housing Act specifically forbid discrimination in employment and housing, respectively.

The PEPUDA prohibits hate speech and harassment based on any of the prohibited grounds of discrimination. South Africa does not have any hate crime penalty-enhancement laws. In August 2011 the Department of Justice established a task force to address the issue of hate crimes against LGBT people.

Men who have sex with men are permitted to donate blood after six months of celibacy.

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. On 30 November 2006 the Civil Union Act came into force; despite its title it does provide for same-sex unions to be called 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.

In 2002 the Constitutional Court's ruling in Du Toit v Minister of Welfare and Population Development extended to same-sex partners the same rights as married spouses, giving the ability to adopt children jointly and the ability for one partner to adopt the other's children. 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.

In 1997, artificial insemination, which was previously limited to married women, was made legal for single women including lesbians. 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.

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." 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. In 2002 the SANDF extended spousal medical and pension benefits to "partners in a permanent life-partnership".

Gender transition laws

The Alteration of Sex Description and Sex Status Act allows transsexual and intersex 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. In the case of transsexual people it requires them to have undergone medical or surgical treatment before applying.

Living conditions

Although the Constitutional and legal system in South Africa theoretically ensure equality, social acceptance is generally lacking, especially outside of urban areas.

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.

There have been a number of cases in which gay women have been the victims of murder, beating or rape. This has been posited, in part, to be because of the perceived threat they pose to traditional male authority. 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. Human rights watchdogs believe that much of the sexism and homophobia that erupts is tied to male frustration with unemployment and poverty.

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 night-life. 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. Smaller cities such as Bloemfontein, Port Elizabeth and East London, too, cater for gay people. Knysna hosts the yearly Pink Loerie Mardi Gras, which attracts gay people from all over the country.

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

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

Gay professionals are employed at major corporate 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 and Dr. Allan Boesak 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.

The U.S. Department of State's 2010 Human Rights Report found that “rights groups reported that the LGBT community was subject to societal abuses including hate crimes, gender violence targeting lesbians, and killings."

Same-sex marriage in South Africa

Same-sex marriage has been legal in South Africa since 30 November 2006, when the Civil Union Act, 2006 came into force, having been passed by Parliament earlier that month. A ruling by the Constitutional Court on 1 December 2005 had given Parliament one year to make same-sex marriage legal. South Africa is the fifth country, the first in Africa, the second outside Europe, and the first republic to legalize same-sex marriage.

Both the Interim Constitution, which came into force on 27 April 1994, and the final Constitution, which replaced it on 4 February 1997, forbid discrimination on the basis of sex, gender or sexual orientation. These equality rights formed the basis for a series of court decisions granting specific rights to couples in long-term same-sex relationships:

• Langemaat v Minister of Safety and Security (1998) recognised the reciprocal duty of support between same-sex partners, and extended medical insurance benefits.
• National Coalition for Gay and Lesbian Equality v Minister of Home Affairs (1999) extended immigration benefits to foreign partners of South African citizens.
• Satchwell v President of the Republic of South Africa (2002) extended remuneration and pension benefits.
• Du Toit v Minister of Welfare and Population Development (2002) allowed same-sex couples to adopt children jointly.
• J v Director-General of Home Affairs (2003) allowed both partners to be recorded as the parents of a child conceived through artificial insemination.
• Du Plessis v Road Accident Fund (2003) recognised the claim for loss of support when a same-sex partner is negligently killed.
• Gory v Kolver NO (2006) allowed inheritance of the estate of a partner who died intestate.

Marriage laws in South Africa

Three laws currently provide for the status of marriage in South Africa. These are the Marriage Act (Act 25 of 1961), the Customary Marriages Act (Act 120 of 1998), which provides for the civil registration of marriages solemnised according to the traditions of indigenous tribes, and the Civil Union Act (Act 17 of 2006). South Africans may choose in terms of which of these laws they wish to be married, but may be married in terms of only one at a given time.

Same-sex marriages are only allowed in terms of the Civil Union Act. Couples marrying in terms of the Civil Union Act may choose whether their union is called a civil partnership or a marriage partnership. Couples joined in a marriage partnership in terms of that act enjoy the same privileges as couples married in terms of the Marriage Act.

If it can be proven that a couple is married in terms of any of these three acts, that marriage is legally valid and may not be regarded as an invalid marriage or a non-marriage by anyone or any organisation. It is therefore illegal for any organisation to treat any such married persons as if they were unmarried.

Provisions for marriage officers

A person who is a marriage officer in terms of the Marriage Act, and who has an objection of conscience, religion or belief to marrying same-sex couples, may object to the government in writing, after which he or she will be granted exemption from having to perform such marriages. A person who is a marriage officer in terms of the Civil Union Act will not be exempted from performing same-sex marriages. Such an objector may, however, give up their office as marriage officer altogether by resigning from whichever organisation they belong to by virtue of which they are a marriage officer, or if said organisation as a whole requests from the government that their members no longer be recognised as marriage officers by virtue of their membership to that organisation.