The Minister of Women, Children and People with Disabilities, Ms Lulu Xingwana, has asked me to deliver this address on her behalf. I am honoured to be able to do so.
I wish to congratulate the organisers for arranging this critical conference, especially during this month, which has been declared by the democratic government as Women’s Month. Ladies and gentlemen, the attack on gays and lesbians is an attack on our democracy. An assault on gays and lesbians is an assault on our democratic society.
Defending the rights of gays and lesbians is a defence of our democracy. Discrimination against the Lesbian, Gay, Bi-sexual, Transgender and Intersex communities [LGBTI] must be fought on all fronts. This is indicative of a pervasive culture of inequality and violence in our society.
Ladies and Gentlemen, I have been requested to provide progress with regard to the integration of issues relating to homophobia and hate crimes specifically targeting lesbians in South Africa - under the theme “ISIMI SAM-My Sexuality”.
Historical background
During the Apartheid dispensation in South Africa, sodomy was a common law crime governed by legislation which was passed in 1967 prohibiting men from engaging in sexual conduct. Accordingly, homosexuality was a criminal offence punishable by up to 7 years in prison and the law was used to outlaw all activities organised by the gay community including political events.
During the 1960’s and late 1980’s the South African Defence Force made it mandatory for white gays and lesbian soldiers to undergo several medical tests as well as further sexual orientation “cures” including forced sex change operations in order to correct what was perceived as abnormal by the system.
Legal rights
The repressive laws in South Africa saw the growth in LGBTI activism which culminated in broader human rights campaigns during the 1970”s and 80’s. In January 2008 all provisions that discriminated on the basis of sexual orientation were formally repealed, making South Africa the first country to outlaw this form of discrimination.
The protection of the human rights of the LGBTI community is based on Section 9 of the Constitution which outlaws discrimination on a number of grounds such as race, gender, sexual orientation, etc. The Constitutional Court later ruled that Section 9 of the Constitution must be interpreted to outlaw discrimination on the basis of transexuality.
In the case of S v Kampher the High Court ruled in 19997 that the Common law crime of sodomy was incompatible with the constitutional rights to equality and privacy. However, this only applied to sodomy. Subsequently, the Johannesburg High Court rule in 1998 in the case involving the National Coalition for Gay and Lesbian Equality v the Minister of Justice that Section 20A of the Sexual Offences Act at it relates to the common law crimes of sodomy and commission of unnatural sexual acts, was unconstitutional.
This was rectified in 2007 with the introduction of the Sexual Offences and Related Matters Amendment Act which set the age of sexual consent from 19 years to 16 years to be in line with the other laws of the country. This included codifying the law on sexual offences in gender and sexual orientation neutral terms. The Domestic Violence Act of 1998 further endorsed the legal protection of same sex relations by classifying it a “domestic relationship”.
Another progressive realisation of the rights of the LGBTI people took place in 2002 when a decision was taken by the courts authorising both joint and step adoption by same sex couples.
Promulgation of anti-discrimination laws
The Constitution of South Africa has demonstrated that the government is committed to the realisation of the rights of LGBTI people. Following the introduction of the Constitution, the Civil Union Act of 30 November 2006 was promulgated to provide for same sex marriages whose legal consequences are the same as under the Marriage Act of 1961 as amended.
The Employment Equity Act [Act 55 of 1998] was passed with the purpose of eliminating unfair discrimination based on many grounds including sexual orientation. Similar protections to the LGBTI were extended with the passage of the Promotion of Equality and the Prevention of Unfair Discrimination Act in 2000. This Act extended protections with regard to public accommodation and services to all people including the LGBTI.
The Government further adopted a White Paper on the National Defence Force which stipulates that the Defence Force shall not discriminate against any of its members based on sexual orientation. This move afforded an opportunity to LGBTI people to serve openly in the defence force. The South Africa Defence Force further developed a Policy on Equal Opportunity and Affirmative Action [AA] which made the questioning of new recruits about their sexual orientation unfair discrimination. This Policy was extended to provide for medical aid benefits to partners in permanent life partnership which by implication included the LGBTI people.
Other measures
The Department of Justice and Constitutional Development [DOJ &CD] established a Task Force to address the issue of hate crime against the LGBTI people. This Task Team is comprised of representatives from the Gay community, Police, Judiciary, Government and the Department of Social Development. It has been tasked with the responsibility to change current legislation which does not classify rape as a hate crime. There are plans to include sexual orientation to a list of aggravating factors in order to get heavier sentences passed thereby changing the minimum sentence.
The Department of Education introduced Outcomes based education as a system that was aimed at developing life skills training approach amongst others. This approach allowed for embracing diversity through the protection of cultural identify and minority group self-actualisation. The curriculum also raises awareness around homosexuality, prejudice as well as racial and gender equality. However, much still needs to be done to empower society to create a nation that respects the values of unity in diversity.
The African National Congress made a commitment at its 50th National Conference held in Mafikeng in December 1997 to ensure the protection of LGBTI people from discrimination at home, school, streets and in the media.
There have been several political campaigns to educate the police, communities as well as religious organisations about the human rights of LGBTI people.
At community level there have been periodic meetings held with organisations representing LGBTI people to discuss how to better address concerns and challenges faced by them. Internationally, South Africa championed and led a resolution on sexual orientation to the 17th Session of the United Nations Human Rights Council which took place in June 2011. This resolution called for the High Commissioner on Human Rights to convene a panel discussion, the first of its kind, on violence against LGBTI people.
These achievements are notable. However, there are still challenges since social acceptance amongst both black and white communities still persist. This has been evidenced through many incidents of murder, rape and acts of assault that have been directed towards the LGBTI people especially because their sexuality has been perceived as a threat to traditional male authority. Allow me Programme Director, to reflect on some of the challenges that are still faced by the LGBTI people.
Challenges
The LGBTI people continue to battle against homophobia in their daily lives. Census 2001 shows that even though urban centres in South Africa are well developed, disadvantaged rural settlements who are in the majority, are still influenced by cultural norms and more so those that are strongly influenced by conservative traditionalism making it difficult to determine the number of LGBTI people. This conservative and traditional view is also found in the Afrikaans families and communities that by enlarge strongly put emphasis on Christianity.
These beliefs coupled with stereotypes have made it very difficult for the LGBTI people where beatings are the order of the day. To elaborate on this let me hasten to mention the case of Noxolo Nogwaza a lesbian activist who was killed after what has become known as “corrective rape”, a practice by men who rape women who are lesbians to supposedly make them straight and cure them from their sexual orientation. This came after the death of another activist Eudy Simelane who was also killed in Kwa-thema where Noxolo was also killed. In both these cases, the victims were tortured and sexually assaulted before being murdered.
Research carried out by Butler and Astbury in 2005, shows that due to the legacy of apartheid the most disadvantaged people are within the black population who live in the townships and informal settlements outside the urban areas. This has a direct impact on the movement of the LGBTI youth due to transport problems and who most rely on trains and taxis.
Safe transport hinders their ability to become involved with work of the LGBTI communities which usually takes place in the urban and city centres. This, therefore, means that they are isolated from their networking as well as support structures resulting in some internalising homophobia. This manifests itself in many forms including fear, internal turmoil, guilt etc.
Conclusion
In concluding allow me Programme Director, to inform this meeting of the plan by the Department of Women, Children and People with Disabilities to establish a national Council Against gender based Violence. The purpose of the Council will inter alia be:
- To facilitate the provision of e help and response to victims and survivors of gender-based violence
- To adopt comprehensive measures in addressing all forms of violence against women and children as well as women with disabilities
- To coordinate the 365 Days National Plan of Action Against Gender-based Violence
Cabinet has given approval for the establishment of the proposed National Council Against Gender-based Violence. This Council will be chaired by the Deputy President Mr Kgalema Motlanthe with a dedicated Secretariat located in the office of the Director General in the Department of Women, Children and People with Disabilities.
The LGBTI community will be fully represented in the Council and nominations are under way. The Council will be launched by the Deputy President on the 25th of August 2012 and it is envisaged that once established this Council will undertake further work in ensuring that the Issues of the LGBTI people are taken to a bigger scale.
I thank you.
