Will I be counted?
It has been a couple of days since I read about the heinous things happening in Tanzania. Just a few days ago, Amnesty reported that there have been a few arrests. And while the government of Tanzania has distanced itself from these acts, it does stop them from happening. The anti-gay rhetoric is Tanzania made me think about South Africa.
The national election is taking place next year and I have been plagued by these elections. Plagued because I am not sure who I should be voting for as a Black queer person. This intersection is important because I am subjugated for my Blackness and my queerness and as I exist in one body, the experience of my life is through my Black queerness. I have spent some time browsing what various parties have had to say about LGBTIQQAP+ rights and needs in South Africa. This is important, for me, as it means we are counted as citizens who are active, engaged and contribute to the economy and other facets of live.
The South African Constitution is lauded as one of the most progressive constitutions in the world. Section 9 of the South Africa Constitution provides for the right to equality. This right expressly says that “everyone is equal before the law and has equal protection of law”. Moreover, the equality clauses explicitly prohibit discrimination on the basis of one’s sexual orientation.
Sexual orientation is not defined in the Constitution. The Constitutional Court in National Coalition for Gay and Lesbian Equality and Another v Minister of Justice and Others sought to give us a definition. In para 21, Justice Ackermann writes:
The concept “sexual orientation” as used in section 9(3) of the 1996 Constitution must be given a generous interpretation of which it is linguistically and textually fully capable of bearing. It applies equally to the orientation of persons who are bi-sexual, or transsexual and it also applies to the orientation of persons who might on a single occasion only be erotically attracted to a member of their own sex.
African National Congress
President Ramaphosa delivered the Eight Annual Desmond Tutu International Peace Lecture recently. In this speech, he spoke about the importance of upholding human rights. He said: “we cannot tolerate discrimination against any person on the basis of their sexual orientation or gender identity”. He continued:
“The violation of the rights and equal worth of lesbian, gay, bisexual, transgender or intersex people demeans our common humanity as South Africans… not only does it expose individuals to pain, suffering and even violence, but it often limits access to social services and economic opportunities for LGBTI people in our country.”
I was really encouraged when I heard these words, but I felt a sense of unease because I am wondering if it is just talk shop. I am saying this because the ANC has been the ruling party since the advent of democracy. We got the equality clause, but is that all that we need as Black queers in this country? I mean where is the affirming health care? There are numerous articles that have lamented the treatment received at the hands of public servants. In their article “Scrambling for access: availability, accessibility, acceptability and quality of healthcare for lesbian, gay, bisexual and transgender people in South Africa”, Alex Müller writes:
Access to healthcare is challenging in South Africa, a country where the vast majority of the population depend on health services in the under-resourced and overburdened public sector. The private sector, catering for less than 28% of the population , accounts for 46% of all health expenditure in the country. Only 16% of South Africans are covered by medical aid, the rest of private sector users pay out of pocket and rely on public care for hospitalization. In this highly unequal system, sexual and gender minority people face the general challenges of service and supply unavailability, long waiting times, and a lack of specialized personnel and services, but also encounter homo- and transphobic discrimination and prejudice on top of these other barriers. Recent South African studies highlight that patients identifying as LGBT experience discrimination at the hands of nurses, doctors, counsellors and even administrative and security staff at public health facilities: In a study among men who have sex with men in Soweto, Johannesburg, all respondents recounted experiences of being insulted, ridiculed, or singled out for their sexual orientation. Transgender people seeking access to HIV services routinely experienced being called names or being blamed for acquiring HIV on the grounds of their gender identity. These experiences emphasise that health professionals themselves often act as gatekeepers to services on the ground.
Former President Zuma has repeatedly refused to condemn anti-gay legislation enacted in other African countries, such as in Uganda and Nigeria, and outrageously appointed defiantly homophobic former journalist Jon Qwelane as South Africa’s ambassador to Uganda.
In 2017, Carl Collison wrote an article titled ‘LGBTI fight for a home in the ANC’. The article explored some of the work that the ANC was doing to create a home for queer people. There were talks of creating a LBGT desk, and later an LGBTI league within the party, that would serve as an advocacy and education initiative. The desk was set to be up and running nationally at the beginning of 2018. It is almost the end of 2018 and I have not read or heard of any talks of this desk being opened.
Does the silence speak volumes in this case? Are we, as queer people, left out in the cold? Will we be accounted in the next general election as people worthy of services?
Economic Freedom Fighters
The EFF has become a key player in South African politics and have really championed the land issue and allow us to wrestle with all the complicities that comes with the fight for land. The question of land is very important, but for me, land would not mean much if I am not recognised as a full human and citizen of this country. In its Constitution, the EFF does not refer to queer people. It refers to the creation of the women’s command and the youth command. An argument could be made that these commands include queer people but for me it seems a little concerning that an LGBTI command was not envisaged. Are we forgotten? One could argue no, because the founding manifesto, clause 105 deals with the gender and sexuality question. The manifesto declares:
The EFF is against the oppression of anyone based on their gender, gender expression, or sexual orientation, meaning that we are against patriarchy, sexism, and homophobia in all of its manifestations. We are also against tribalism and religious and cultural intolerance. We oppose any cultural or religious practices that promote the oppression of anyone, especially groups that have been historically oppressed by such practices.
Great, the EFF says it is against oppression of anyone based on their gender, gender expression and sexual orientation. It has also been vocal about a number of human rights violations of LGBTI people around the continent. While it is commendable that we are in the founding manifesto, I want to see more. Where is the fight for health care services that are affirming for queer people, equality in the workplace? What is the strategy to combat violence against queer people?
The Civil Union Act was enacted in 2006 following the Fourie judgment. In Fourie, the Court declared the definition of marriage in the Marriage Act unconstitutional. Effectively, it granted marriage equality to same-sex couples. Justice Sachs, writing for the majority, eloquently said:
The exclusion of same-sex couples from the benefits and responsibilities of marriage, accordingly, is not a small and tangential inconvenience resulting from a few surviving relics of societal prejudice destined to evaporate like the morning dew. It represents a harsh if oblique statement by the law that same-sex couples are outsiders, and that their need for affirmation and protection of their intimate relations as human beings is somehow less than that of heterosexual couples. It reinforces the wounding notion that they are to be treated as biological oddities, as failed or lapsed human beings who do not fit into normal society, and, as such, do not qualify for the full moral concern and respect that our Constitution seeks to secure for everyone. It signifies that their capacity for love, commitment and accepting responsibility is by definition less worthy of regard than that of heterosexual couples.
The Civil Union Act is not without fault. There are a number of problematic aspects about the Act and one of the aspects was highlighted by COPE. In 2017, a private bill has been lodged by COPE Member of Parliament, Deidre Carter, that seeks to have the “right of refusal” of state employed marriage officers taken away.
The Civil Union Amendment Bill aims to repeal section 6 of the Civil Union Act, which allows a marriage officer in the employ of the state to inform the Minister of Home Affairs that he or she objects on the ground of conscience, religion, and belief to solemnising a civil union between persons of the same sex — and to be exempted from officiating over such marriages. This Bill shows a commitment on behalf of COPE to ensure that true marriage equality is achieved. This is a start for COPE but there is so much more to do.
The amendment is supported by ANC, DA and EFF. However, ACDP — through Cheryllyn Dudley — came down on the Bill. She said: “For a society that professes to value freedom of choice we are becoming more and more selective about who gets to choose and who does not,” She indicated that it was important for Parliament to protect all civil servants, despite their beliefs.
For Dudley, it was important the Parliament protected all civil servants, despite their beliefs. She said “Our constitution protects freedom of conscience, religion and belief and members of Parliament have a duty to see that people are not compelled to act against their conscience in the course of their work and that they are not discriminated against on these grounds,”
On their website, the DA proudly declare:
So we stand up for lesbian, gay, bisexual, trans, intersex and queer (LGBTIQ+) South Africans. And we push for social acceptance through our diverse LGBTIQ+ alliance, which works hard to represent all voices.
We know that even though South Africa has come a long way with LGBTIQ+ rights, more needs to be done to create safe and non-discriminative environments, at work and at home, and in at-risk communities across the African continent.
And we work hard to foster a culture of acceptance and support because the DA must be a home for all. The fact that many DA MPs, representatives and activists are openly LGBTIQ+ in public is a testament to that.
Grounded in our values of freedom, fairness, opportunity and diversity, we are building One South Africa for All.
They laid a complaint against Ulwazi High School in Mdantsane for forcing 38 teenage girls, aged 14 to 18, to publically tell their parents they are gay. To this date, they are the only political party that have said anything about the situation in Tanzania. In their statement they expressed that they are “incensed by the creation of a surveillance squad dedicated to hunting down LGBTI people”.
All the political parties in South Africa, for me, have fallen short of enhance LGBT rights and LGBT people. Our country is littered with stories of LGBT people dying at the hands of people who are homophobic, what do the parties propose they can do to reduce the number of deaths? Most of us want affirming public health care, will parties ensure that they do something about that? We want true marriage equality, meaning to be able to get married in terms of customs and traditions that are indigenous to us, will parties ensure that? We want to be able to express ourselves at work in our fullness, will the policies and laws that allow us that? Will the need for bathroom for trans persons be something we put on the forefront of our issues to address? Will the need to ensure that trans people get affirming and speedy services at home affairs be something in their minds? Will we as queer people be counted as people or will remain sub-human and second-hand citizens of this country
I really want to be able to vote in the 2019 election but right now it seems I might not because I do not feel seen.