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Are same sex marriages legal in South Africa?

"Same sex relationships are recognised for most purposes in the law, including pensions, estates, medical aids and employment benefits. "

Lesbian and gay marriages are not yet recognised in South Africa. The South African Law Commission is, however, currently reviewing the Marriage Act, with specific reference to finding ways in which to legally recognise same sex marriage.

The fact the same sex marriages are not recognised as such does, however, not mean that same sex relationships are not recognised at all. Same sex relationships are recognised for most purposes in the law, including pensions, estates, medical aids and employment benefits.

Persons who are in a same sex relationship should nevertheless take the precaution of having formal legal documents drawn up that will protect both parties and the relationship itself. The Gay and Lesbian Legal Advice Centre provides this service to its' clients, but also assists other law firms in drawing up contracts for lesbian and gay people.

Originally published: 6 March 2002
Revised: N/A

What is the age of consent for persons of the same sex in South Africa?

The legal age of consent for men having sex with men is 19.

For women having sex with women, it is a bit vague… There is in fact a laguna in the law, i.e. the law does not express itself on this matter.

Having said this, it is important to note that the new Sexual Offences Act proposes to equalise this age of consent to 16 for any person having sex with any other person.

Also, most of the Prosecuting authorities in South Africa have indicated that they will not prosecute where the younger person is 16 years or older. This situation may very well not be the case if parents are involved in filing a complaint.

It is perhaps also important to note that though commercial sex is hardly ever prosecuted in South Africa, prosecutions will be made if the sex worker is under the age of 18. This is considered child prostitution in South Africa.

Originally published: 8 March 2002
Revised: N/A

What is the legal position of transsexual and/or transgender persons in South Africa?

As lesbian and gay people, we are not only defined by our same-sex desire. We may be black, we may be disabled, and we may be poor. And we may face discrimination because we are lesbian or gay, because we are black, because we are disabled, or because we are poor, or because we do not look the way society expects us to look.

All societies expect men and women to look in particular ways. When people do not do so, when they challenge the gender roles given to them and expected of them by society, society lashes back. While most of the discrimination is not entrenched in law, transgender people have found little support in the law. The introduction of a constitutional prohibition against unfair discrimination on the basis of gender has shifted the balance. Nevertheless it remains particularly unclear to what extent the protection against unfair discrimination on the basis of gender would assist transgender people.

While most transgender people face discrimination on the basis of their gender identity, some face discrimination because they have undergone sexual realignment surgery. In a report titled "Investigation into the Legal Consequences of Sexual Realignment and Related Matters," the South African Law Commission argued that such discrimination is not prohibited by the Constitution. But this cannot be true. Deciding to undergo sexual realignment surgery is so integrally linked to gender identity that such discrimination would clearly be gender discrimination.

Transsexual Rights

While it is not against the law to undergo sexual realignment surgery, South African law only recognises a person's sex as his or her birth sex-amendments to the birth register and successful sexual realignment surgery have no impact on this.

Until 1992, it was possible to amend the birth register. Section 7B of the Births, Marriages and Deaths Registration Act, 1963 stated that-

"The Secretary for the Interior May, on the recommendation of the Secretary for Health alter, in the birth register of any person who has undergone a change of sex, the description of the sex of such person, and may for the purpose call for such medical reports and institute such investigation as he may deem necessary"

This meant that any person who had undergone such surgery could get the birth register changed to reflect his or her post-operative status. This is important to prevent confusion and violations of privacy and dignity-post-operative transgender person's identity documents would reflect the post-operative sex. But amendments to the Birth Register do not change a person's legal sex-the law recognises your sex as your birth sex. Even if you identify as a woman, and physically you are a woman, the law recognises you as a man if you were born a man.

The Births, Marriages and Deaths Registration Act was replaced in 1992 by the Births and Deaths Registration Act, 51 of 1992. According to section 33(3) of the new Act, any person-

"Who was in the process of undergoing a change of sex before the commencement of the Act, may on completion of the said process apply in terms of section 7B of the Births, Marriages and Deaths Registrations Act, 1963, for the alteration of the sex description in his birth register"

This means that only people who had started the process of sexual realignment before 1992 can apply for an amendment to the birth register. The new Act means that fewer people can now get the birth register amended - the status of a person's legal sex has still not changed.

The legal consequences of this failure to recognise post-operative sex are as follows:

A male to female transsexual-cannot be legally raped - as only woman can be legally raped. This means that offenders can only be convicted of lesser crimes, such as indecent assault; and cannot marry a man, but can marry another woman.

Similarly, a female to male transsexual cannot be legally raped and cannot marry a woman, but can marry another man.

This position is set to change in the near future with the recommendations of the South African Law Commission on the Sexual Offences Act. According to these recommendations, transgender persons, pre and post operative will be able to be both perpetrators and victims of rape (whether they have their birth or surgically constructed genital organs)

The irony of this conservative aspect of the law is that it, in effect, allows for same-sex marriages to be performed, as long as one of the partners is a post-operative transsexual.

Why is the recognition of post-operative sex so important?

On a purely practical level, non-recognition would be such an issue if our laws (such as rape and marriage) did not discriminate on the basis of sex and sexual orientation. But one must not forget that about the right to dignity, and the right to be free from discrimination on the basis of gender. At a minimum, every post-operative transsexual has the right to have his or her gender recognised by the state, which includes the right -

  • To obtain identity documents which reflect his or her gender; and
  • To amend any official records which inaccurately reflect his or her gender.

It remains unclear to what extent, if any, pre-operative transsexuals and other transgender person's have a similar right.

Originally published: 13 March 2002
Revised: N/A

 
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