Equal in Word of Law: The Rights of Lesbian and Gay People in South Africa

Author: Wendy Isaack, B.Proc, Legal Advisor, The Equality Project Legal Advice Centre.
Originally published: Human Rights, Summer 2003, Vol. 30, No. 3 [ Human Rights is an official publication of the ABA (American Bar Association) Section of Individual Rights and Responsibilities]
Revised: N/A

South Africa has one of the most progressive and inclusive Constitutions in the world. It has extended human rights protections across the board, acknowledging the respect due to diversity in a way which the ideologies of “national unity” or “cultural authenticity” prevalent in many countries still prevent. In particular, the South African government has shown, in the word of law, an unprecedented African commitment to acknowledging and upholding the human rights of lesbian, gay, bisexual and transgendered (LGBT) residents and citizens.

It is important to remember, however, that while these developments mark tremendous advancements, not all LGBT South Africans enjoy the benefits. There are extreme disparities of wealth in South Africa. Poverty as grim as the worst shantytowns in Lusaka can be found a few miles, or blocks, from shops and offices as posh as anything in London. These gross indifferences cut across LGBT lives. Canyons of economic inequality, social isolation, and cultural exclusion preclude most of the population from accessing legal advancements or from experiencing the freedoms described on paper.

South Africa’s Constitution guarantees the right to equality and non-discrimination to all people and includes a specific prohibition against discrimination on the basis of sexual orientation. This guarantee is found in the Equality Clause of the Bill of Rights and reads as follows:

Section 9(1) Everyone is equal before the law and has the right to equal protection and benefit of the law.
9(2) Equality includes the full and equal enjoyment of all rights and freedoms. To promote the achievement of equality, legislative and other measures designed to protect or advance persons, or categories of persons, disadvantaged by unfair discrimination may be taken.
9(3) The state may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience belief, culture, language and birth.
9(4) No person may unfairly discriminate directly or indirectly against anyone on one or more grounds in terms of subsection (3). National legislation must be enacted to prevent or prohibit unfair discrimination.
9(5) Discrimination on one or more grounds listed in subsection (3) is unfair unless it is established that it is fair.

The provisions of section 9(3) and 9(4) of the Constitution ensure both vertical and horizontal application of the Bill of Rights so that no-one - whether the state, a private company or an individual - may unfairly discriminate against any person. This means, amongst other things, that lesbian and gay people cannot be unfairly discriminated against because of their sexual orientation.

Case law from the Constitutional Court makes clear that the equality clause must be interpreted “in light of that history and the enduring legacy that it bequeathed.”

In re Brink v Kitshoff, 1996 (6) BCLR 752 (CC). The Curt has also indicated that discrimination itself must be analysed in light of the history of discrimination against the particular group. In this regard, Justice O’Regan states:

To determine whether the discrimination is unfair it is necessary to recognise that although the long-term goal of our constitutional order is equal treatment, insisting upon equal treatment in circumstance of established inequality may well result in the entrenchment of that inequality…[I]t is necessary to look at the group or groups which have suffered discrimination in the particular case and at the effect of the discrimination on the interests of those concerned. The more vulnerable the group adversely affected by the discrimination, the more likely the discrimination will be held to be unfair. Similarly, the more invasive the nature of the discrimination upon the interests of the individuals affected by the discrimination, the more likely it will be held to be unfair. President of th Republic of South Africa and Another v Hugo, 1997 (4) SA 1 (CC).

The Constitutional Court has dealt with the right to equality and the right to freedom from discrimination on the basis of sexual orientation in two landmark cases; known as the 'Decriminalisation Case’, National Coalition for Gay and Lesbian Equality and Another v Minister of Justice and Others, 1998 (12) BCLR 1517 (CC)' and the 'Immigration Case, National Coalition for Gay and Lesbian Equality and Another v Minister of Home Affairs and Others, 2000 (2) SA 1 (CC). In both these cases the Court made it clear that equality does not mean that differences are to be eliminated, but rather that equality demands respect for and tolerance of diversity, and that unfair discrimination must be understood in the context of the experiences of those primarily affected.

The South African Litigation Strategy

In South Africa, the first essential step toward equality was the repeal of sodomy laws. These laws relegated lesbian and gay people to second-class status in the eyes of the law. Activists then decided that the litigation would move on to partnership recognition, focusing first on Immigration benefits because these had the fewest financial implications and were the least threatening to the state. From there, we planned to move into areas to leverage recognition of real economic benefits for lesbian and gay individuals and couples.

So far, this strategy has been largely successful. Yet despite the governing African National Congress (ANC) party’s vocal commitment to LGBT rights, the state has contested in court almost every single precedent setting case meant to define those rights under the Equality Clause – including, astonishingly, defending the constitutionality of sodomy laws themselves. When High Courts ruled against the government, the government regularly appealed. Such State combativeness is not conducive to a culture of rights. Indeed, in the same way that Robert Mugabe’s treatment of gays and lesbians foreshadowed the wider patterns of abuse for which he has since been condemned worldwide, the government’s resistance to judicial recognition of LGBT rights may have foreshadowed its disastrous, and internationally notorious, unwillingness to fulfil its Constitutional obligations by making HIV/AIDS medications available. The government’s paradoxical support for sodomy laws, and its tooth-and-nail resistance to providing drugs preventing mother-to-child HIV transmission, perhaps represent the same gradually growing caution about making rights into realities.

We live in fear of rogue lawsuits that might challenge courts in ways the applicants, or we, are not ready for. This fear reflects the piecemeal manner of pursuing protections through the courts. Judges rewrite the language of laws bit by bit, decision by decision, assembling a patchwork of uneven progress; but a Parliament attuned to the spirit of the Equality Clause could achieve quicker, more consistent and comprehensive change.

A range of positive protections have indeed been written into legislation:

• The Promotion of Equality and Prevention of Unfair Discrimination Act (2000), or “Equality Act,” commits the government to “promote equality” on all the grounds in the Constitution’s Equality Clause—although the specific mechanisms for redress created by the act focused entirely on gender-, race-, and disability-based discrimination.
• The Domestic Violence Act (1999), allows any person in a “domestic relationship”—effectively meaning any cohabitation between people who are not close blood kin but living in the “same residence”—to get a protection order against abuse. It replaced an older Family Violence Act which had limited protection orders to married people.
• The Rental Housing Act (1999) bars (section 4.1) discrimination in rental housing on all the grounds in the Equality Clause, including sexual orientation.
• The Employment Equity Act (1998) bars unfair discrimination “in any employment policy or practice,” which would include benefits such as pensions and insurance, on all the grounds listed in the Equality Clause, as well as “family responsibility” and “HIV status.”
• The Medical Schemes Act, 131/1998 defines a “dependant” so as to include same-sex partners, as well as unmarried heterosexual partners.
• The Labour Relations Act (1995) bars unfair dismissals, including dismissals on the basis of sexual orientation.

The right to sexual orientation, sexual expression and the criminal law

Prior to the inception of the new Constitution, South African criminal law made sexual conduct between same-sex partners a criminal offence. This criminalisation of same-sex sexual conduct only ended in 1999 when the Constitutional Court gave its judgement in the 'Decriminalisation Case' in 1998 exactly two years after the adoption of the Constitution, Judge Jonathan Heher of the Johannesburg High Court declared the common law offence of sodomy and sodomy as an offence – as codified in the Sexual Offences Act, No. 23 of 1957; the Criminal Procedure Act, No. 51 of 197, and the Security Officers Act, No. 92 of 1987 – to be inconsistent with the principles enshrined in the Constitution. The Constitutional Court affirmed this holding. Writing on behalf of the entire Court Justice Laurie Ackerman stated:

The discriminatory prohibition on sex between men reinforces already existing societal prejudices and severely increases the negative effects of such prejudices on their lives.

In addition, the Court held that the symbolic effect of the laws was in the eyes of the legal system all gay men as criminals. As a result, gay men were at risk of arrest, prosecution and conviction simply for expressing a very natural part of their lives, their sexuality. The Court found that the laws made gay men insecure and vulnerable while simultaneously degrading and devaluing them and ruled that these laws be abolished.

The rights of Immigrants

The 'Immigration Case' followed a drawn out dispute between the National Coalition for Gay and Lesbian Equality and the Department of Home Affairs about the status of same-sex couples and their exclusion with regard to immigration benefits. In essence, provisions of the Aliens Control Act granted non-South African spouses of South African citizens the right to an immigration permit based on the marriage. By granting a benefit to married people that was not granted to people who could not marry, such as same-sex life partners, the law clearly differentiated between groups of people. This differentiation, the constitutional Court held, overlapped and intersected on two of the grounds listed in the Equality Clause: sexual orientation and marital status. In 2000 the Constitutional Court found that the provisions of the Aliens Control Act constituted unfair discrimination and were, therefore, unconstitutional. On behalf of the Court, Justice Ackerman stated:

The sting of past and continuing discrimination is that …lesbian and gay people do not have inherent dignity and are not worthy of human respect. Lesbian and gay people in same-sex life partnerships are as capable as heterosexual couples of expressing and sharing love in its manifold forms…they are capable of constituting a family including affection.

As a result of this judgement, the immigrant partners of lesbian and gay people are allowed to apply for permanent residence on the basis of a same-sex relationship with a South African partner. The judgement sent a clear message that same-sex partners have the right to choose their families and relationships and to live together as a family while enjoying equal protection of the law.

The rights of refugees

The Refugees Act of 1998 provides for the rights of refugees and asylum seekers. Many people flee their countries because they face persecution, or fear it, based on their sexual orientation. The Act recognises ‘membership of a particular social group’ as one of the grounds of persecution, rendering individuals eligible to apply for refugee status. The Act allows for the inclusion of lesbian and gay people because 'social group' is defined as 'a group of persons of particular gender, sexual orientation, disability, class or caste'.

The right to be protected from domestic violence

Although the 1991 Prevention of Family Violence Act did not explicitly provide for the protection of 'victims' of same-sex domestic violence, the Domestic Violence Act, No 116 of 1998, seeks to protect everyone living in an abusive relationship, including lesbian and gay people. The Act refers to people in 'domestic relationships' as those who are living together as if they were married, and those in dating relationships even if they are not living together, whether of the same sex or opposite sex. The Domestic Violence Act also allows for the protection of a lesbian or gay person who is being harassed by an immediate family member.

The rights of lesbian and gay families

As in the United States, many LGBT South Africans have children, from previous marriages or relationships, assisted reproductive technologies, or adoptions. As the legal framework becomes less discriminatory and more affirming, more and more lesbian and gay people are exploring their parenting options.

Donor insemination

Many lesbians favour the process of donor insemination because it enables them to become pregnant without having to engage in sexual intercourse with a man. In South Africa, the Human Tissue Act, No. 65 of 1983 amended by Act 106 of 1984 and act 51 of 1989, governs this process. Until October 1997, the Act was limited because access to donor insemination was limited to married women – and then only if their husbands gave written consent. The amendments now allow for all unmarried women - including lesbians, to make use of donor insemination.

Adoption

Before September 2002, there was no legal prohibition against adoptions by individual lesbian or gay people, but adoptions by same-sex couples were strictly prohibited. In the matter of Du Toit and Another v Minister of Welfare and Population Development and Others, CCT 40/01 2002 (10) BCLR 1006 (CC), the Constitutional Court held that same-sex life partners can jointly adopt children. The applicants were partners in a long-standing lesbian relationship who brought an application before the Pretoria Children’s Court to adopt two children, a brother and a sister. Due to the provisions of the Child Care Act that confined joint adoption to married couples, the children’s court could grant custody and guardianship to only one partner. The applicant’s then brought an application to the Pretoria High Court challenging the constitutionality of certain provisions of the Child Care Act and Guardianship Act. They claimed that the two statutes discriminated against them on the basis of their sexual orientation and marital status, infringed upon the dignity of the first applicant, and undermined the constitutional principle that the best interests of the child are of paramount importance in all matters concerning the child. The High Court ruled that the statutes indeed violated constitutional rights and ordered that certain words be read into them to allow same-sex life partners jointly to adopt children. The Constitutional Court later confirmed the order made by the High Court, holding that the legislation must allow same-sex life partners jointly to adopt children where they are otherwise found to be suitable parents.

Custody of and access to minor children

Decisions have affirmed that the courts, in determining custody of a child in a divorce matter, must always take the best interests of the child into account. The parent’s sexual orientation is no longer relevant in such matters.

A number of cases resulted in the new standard:

• Van Rooyen v Van Rooyen. 1993: Even before the Equality Clause, a Court ruled that a divorced mother could not be denied access to minor children because she was participating in a lesbian relationship.
• Greyling v Minister of Welfare. 1998: A High Court overturned a magistrate’s decision removing a child from a lesbian mother and giving her to her grandparents, solely due to the fear that the child would suffer psychological damage because of the lesbian relationship.
• Mohapi v Mohapi. 1998: A High Court awarded full custody of a child after a divorce to the mother, now involved in a stable lesbian relationship.

Parenting Rights

On March 28, 2003, the Constitutional Court held that when a same-sex couple has a child through artificial insemination, both are automatically the legal parents of the child. J & B V Director General of Home Affairs, Minister of Home Affairs, & President of the Republic of South Africa, CCT 46/02. The case concerned two applicants who had been involved in a permanent same-sex life partnership since 1995. In August 2001 the second applicant gave birth to twins conceived by artificial insemination. The sperm was from a an anonymous donor, and the ova were from the first applicant. Both applicants sought to register as parents of the twins. Barred by Section 5 of the Children’s Status Act of 1987, the applicant’s sought relief in the Durban High Court, arguing, among other things, that the section was unconstitutional because it unfairly discriminated on the basis of sexual orientation by legitimising children born as a result of artificial insemination to heterosexual married couples but not those born to same-sex permanent life partners. The High Court agreed and found that the section unconstitutional.

The right to Partnership Benefits

Partnership benefits, like parenting rights, represented an important step toward equality for LGBT South Africans. Activists worked to secure protections for the same-sex partners of employees in both the private and public sector.

Private pensions

After the decision in Martin v Beka Provident Fund, PFA/GA/563/99, brought before the Pension Fund Adjudicator in 1999 by the Gay and Lesbian Legal Advice Centre, the Adjudicator declared the rules of the Beka Provident Fund unconstitutional because they excluded surviving same-sex partners from the benefits of spousal pensions. In so doing, the pension fund are entitled adjudicator ordered the fund not only to start paying the spousal pension but also to make back payments. As a result of this ruling, surviving partners of a member of a pension fund are entitled to a spousal pension. They also have the right to share in a pension if the partner lived in a relationship of mutual dependence in addition to participating in a shared and common household.

State pension

The Lesbian and Gay Equality Project successfully settled a class action against the Minister of Finance that had been filed with the Pretoria High Court. In the application, The Equality Project sought to secure full pension benefits for the surviving same-sex partners of state employees.

The dispute arose because surviving spouses in heterosexual relationships with state employees qualify for “widows pensions”. This benefit was not available to same-sex partners of state employees. Private pension funds eliminated this type of discrimination with the introduction of the Pension Funds Act, 1999. This settlement effects an estimated 100 000 lesbian and gay employees. The application further sough to declare certain sections of the Government Employees Pension Law and other legislation invalid and unconstitutional because they prevent same-sex partners of state employees from securing equal benefits.

Medical Aid Benefits

The new definition of 'dependant' in the Medical Schemes Act, No. 131 of 1998, includes same-sex partners as well as unmarried heterosexual partners. This change follows a decision in Langemaat v Minister of Safety and Security and Others, 1998 (3) SA 312 (T), in which a member of the South African Police Service applied to register her lesbian partner as a dependant on the Police Medical Aid Scheme. The application was refused because the definition of dependant in both the regulations and the and the rules of the Police Medical Scheme did not include same-sex couples. The Court found that the regulations and the rules unfairly discriminated against lesbian and gay people and on that basis, declared them unconstitutional.

Further, in Satchwell v The President of South Africa and the Minister of Justice. Both the Pretoria High Court and the Constitutional Court on review found that same-sex partners must be included in benefits given to the spouses of judges under the Judges Remuneration Act. The Constitutional Court ordered the Act changed to include and, on review, the Constitutional Court found that same-sex partners must be included in benefits given to the spouses of judges under the Judges Remuneration Act. The Constitutional Court ordered the Act changed to include, after the term “spouse” in the delineation of benefits, the additional words “or partner, in a permanent same-sex life partnership in which the partners have undertaken reciprocal duties of support.”

Conclusion

South Africa has undoubtedly made progress towards securing access to constitutionally guaranteed rights for lesbian and gay people. However, there is still a long way to go to ensure full and equal benefit and protection of the law. Some of the legal challenges ahead include the equal right to marriage, equal age of consent, and identity rights for transgendered and transsexual people. Yet even current laws have not filtered down to the level of everyday life. The fact of prejudice against LGBT people persists, and the state has done little or nothing to counteract it. In black communities across South Africa, homosexual conduct is still seen as “un-African.” The biggest social challenge today continues to be the tolerance and acceptance of lesbian and gay people as equal members of South African society.