Gay Rights In South Africa

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Considering its PRIDE week in Johannesburg this week we thought it apt to bring you a short history of the hard fought battles for Queer rights in South Africa.

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.

Then 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.

ImageIn May 1996, South Africa was the first jurisdiction in the world to provide constitutional protections for LGBT people, through Clause 9 of the South African Constitution which disallows discrimination on race, gender, sexual orientation and other grounds.

Since 1 January 2008, all provisions that discriminate have been formally repealed—including an equalized age of consent at 16 regardless of sexual orientation, and all sexual offences defined in gender-neutral terms.

Apartheid Years
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 and the law was used to harass and outlaw the South African queer community, events and also political activists.

ImageDespite the opposition, several South African gay rights organisations did arise in the late 1970s, around 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 mostly a white organisation that initially avoided taking an official position on apartheid, while the Rand Gay Organisation started out as being multi-racial and in opposition to the racist political system of apartheid.

From 1960s to the late 1980s, the South African Defense Force forced white gay and lesbian soldiers to undergo various medicial "cures" for their sexual orientation, including sex change operations. The treatment of gay and lesbian soldiers in the South African military was explored in the 2003 documentary film titled Property of the State.

Conservative social attitudes among both white and black populations were traditionally unfavourable to homosexuality; such attitudes have persisted to some degree in post-Apartheid society.

In some regards, the outbreak of the AIDS-HIV epidemic in South Africa, forced LGBT South Africans out of the closet and to work together to fight the spread of the disease and to ensure that those that are infected have access to the life-saving medicine.

Post-Apartheid
ImageIn 1993 the African National Congress endorsed legal recognition of same-sex marriages, and the interim constitution opposed discrimination on the basis of sexual orientation and promised to defend a right to privacy. 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. Hence, 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 which prohibited homosexual conduct between consenting adults in private, violated the Constitution.

In 1998, Parliament passed the Employment Equity Act. The law protects South Africans from unfair labour discrimination on the basis of sexual orientation, among many other categories [6] In 2000, similar protections were extended to public accommodations and services with the approval 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 opposite gender, and gave the South African Parliament one year to 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 maintain the right to refuse to solemnize same-sex unions.

Living conditions
While the Constitutional and legal system in South Africa theoretically ensure equality, social acceptance is generally still lacking, especially outside of the cities.

ImageIn 1998, the National Party leader denied accusations that he had paid a man for sex, by stating that he was a "Boerseun" (farmer's son), thus implying that homosexuality is not something that is found among the Afrikaners. South African Gay rights organisations called for an apology.

Gay women from smaller towns (especially the townships) are often victims of beating or rape because of the perceived threat they pose to traditional male authority. South Africa has no specific "hate crime" legislation, and 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 continued impunity and accused governments of turning a blind eye to crimes such as 31 reported murders of lesbians in homophobic attacks (and an unknown number of murders whose homophobic elements were not reported) in South Africa since 1998 (until early 2009), only two of which made it to the courts and only one of which resulted in a conviction, as well as to so-called “corrective” rapes, including cases among school learners. Here, the male rapists purport to be raping or have raped the lesbian victim with the intent of thus “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, homosexual people in major urban areas like Johannesburg, Pretoria, Durban and Cape Town are fairly accepted and all these cities have a thriving gay nightlife.

Cultural, Arts, Sport and Outdoor activities also play a major part in everyday gay life. Annual Gay pride events are held in both Johannesburg and Cape Town.

Smaller cities such as Bloemfontein, Port Elizabeth and East London also cater for us queer folk.

Knysna hosts the yearly Pink Loerie Mardi Gras, which attracts queer folk from all over the country.

Locally produced television programmes also focus on gay life and the locally produced soap Opera Egoli even featured a long term gay relationship.

In the most recent season of the South African Survivor reality series, one of the contestants was an openly gay man.

South Africa also attracts thousands of queer tourists to the country each year, as it is regarded as Africa's premier gay friendly destination.

The official South African Tourism site offers in depth travel tips for the gay traveller. Gay friendly establishments are situated all over South Africa and could be found on one of the various gay travel websites.

Since anti-discrimination laws exist, many gay professionals are employed at major corporate companies throughout the country. Queer folk are also targeted through various marketing campaigns, as the corporate world recognizes the value of the "Pink Rand". Even in religious circles some prominent leaders voiced their support for the LGBT community. Archbishop Desmond Tutu and Dr. Allan Boesak are vocal supporters of gay rights in South Africa.

Even the conservative Dutch reformed church also recently ruled that gay members should not be discriminated against and could hold certain positions within the church. However a lot of criticism still exists against the church and a recent court ruling against a congregation of the church for firing a gay musician caused an uproar in the gay community and within liberal circles.

But, in 2009, the Queer struggle in South Africa is not yet over as a new threat to gay civil liberties looms. Ray McCauly's Rhema Church have started to gather the more conservative religions under its wing and began to formulate a plan against South Africa's liberal constitution recently.

Its up to queerfolk like us to put a stop to this new threat and one way of doing so is to arrive at Johannesburg Pride in vast numbers. See you there on the 3rd of October.



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