Media statement: SAHRC institutes equality court proceedings on behalf of a transgendered learner in Limpopo
The South African Human Rights Commission (SAHRC) has instituted proceedings in the Seshego Equality Court (Limpopo) on behalf of a transgendered secondary school learner.
The case arises from allegations of humiliation and harassment based on the gender identity of the learner that created a hostile and intimidating environment. The proceedings have been instituted to procure relief for alleged unfair discrimination, harassment, and hurtful speech.
The respondents in the case are the Limpopo Department of Education and a former school principal.
Mandate of the SAHRC
The South African Human Rights Commission (the Commission) is a constitutional body specifically mandated to:
- Promote respect for human rights and a culture of human rights.
- Promote the protection, development and attainment of human rights; and
- Monitor and assess the observance of human rights in the Republic.
The South African Human Rights Commission Act empowers the Commission to secure appropriate relief where human rights have been violated as it has undertaken to do in this case to protect human rights.
Equality
The Constitution
The Constitution of the country protects the right to equality. Section 9 of the Constitution states: “Equality includes the full and equal enjoyment of all rights and freedoms.”
It further states that neither the state, nor any person, may unfairly discriminate either directly or indirectly against anyone on the grounds of race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth.
Domestic Legislation
The Promotion of Equality and Prevention of Unfair Discrimination Act (PEPUDA) prohibits discrimination on the same grounds as Section 9 of the Constitution. PEPUDA further prohibits discrimination, which “causes or perpetuates systemic disadvantage; undermines human dignity; or adversely affects the equal enjoyment of a person's rights and freedoms in a serious manner.”
Dignity & Equality
Dignity and equality are inter-related. Conduct that results in unfair discrimination and that undermines human dignity undermines social cohesion and has no place in our constitutional democracy.
In 1997 the Constitutional Court held as follows:
At the heart of the prohibition of unfair discrimination lies a recognition that the purpose of our new constitutional and democratic order is the establishment of a society in which all human beings will be accorded equal dignity and respect regardless of their membership of particular groups. The achievement of such a society in the context of our deeply inegalitarian past will not be easy but that that is the goal of the Constitution should not be forgotten or overlooked."
LGBTI rights as Human Rights
The Commission is concerned that LBGTI persons continue to face victimisation, discrimination and violations of their rights basic rights. In particular, their rights to human dignity and equality are violated most often.
Our courts have pronounced on the systemic discrimination faced by LGBTI persons. This discrimination is made even more egregious when it is directed at children.
Schools are the primary institutions for the realisation of the right to education for most learners. They provide a place of learning, social development and social encounter for children with various sexual orientations and sexual identities, who come from various ethnicities, religions and backgrounds. Simultaneously, schools are also places where the exercise of authority may render certain groups vulnerable.
The Commission is of the view that schools have a clear obligation to adopt reasonable measures to avoid painful psychological and sometimes traumatic impact on minor learners. In an open and democratic society based on human dignity, equality, and freedom, special pains must be taken by all actors in the education sector to ensure these values and rights are protected.
Our Constitution unequivocally protects the rights of persons from discrimination based on sexual orientation and gender identity. The matter initiated at the Equality Court emanates from the Commission’s mandate to protect all human rights, including the rights of transgender people, and to promote the values of equality and dignity at the heart of our Constitution.
The constitutional rights of transgendered people in general, and transgendered minors in particular, to enjoy the full and equal enjoyment of all rights and freedoms should be respected and protected in all spheres of society, including places of learning.
For media enquiries, please contact:
Gushwell Brooks
Tel: 011 877 3814
Cell: 082 645 8573
E-mail gbrooks@sahrc.org.za
