LGBT rights in South Africa

From Susan's Place Transgender Resources
Jump to: navigation, search
LGBT rights in South Africa
South Africa
South Africa
Same-sex sexual activity legal? Legal since 1994,
age of consent equalized in 2008
Gender identity/expression -
Recognition of
Recognition since 1999,
same-sex marriage since 2006
Adoption Legal since 2002
Military service Gays and lesbians allowed to serve
Discrimination protections Sexual orientation protection (see below)

South Africa has a diverse history when it comes to the legal and social status of lesbian, gay, bisexual, and transgender (LGBT) people as a result of traditional South African mores, western imperialism, Apartheid and the human rights movement that contributed to the down fall of apartheid. South Africa's post-apartheid constitution was the first in the world to outlaw discrimination based on sexual orientation, and on 1 December 2006 South Africa made history by becoming the fifth country in the world, and the first in Africa, to legalise same-sex marriage. One year later an equal age of consent was achieved; after lengthy debate and an overhaul of sexual offences legislation, age of consent was gender-neutralized at 16.

History of LGBT 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 [1]. In 1994, male same-sex conduct was legalized, female same-sex conduct never having been illegal (as with other former British colonies). At the time of legalization the age of consent was set at 19 for all same-sex sexual conduct, regardless of gender. In May 1996, South Africa became the first jurisdiction in the world to provide constitutional protection to LGBT people, via section 9(3) of the South African Constitution, which disallows discrimination on race, gender, sexual orientation and other grounds. As of 1 January 2008, all provisions that discriminate have been formally repealed—including an equalized age of consent at 16 regardless of sexual orientation, and all sexual offenses defined in gender-neutral terms.


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; this law was used to harass and outlaw South African gay community events and political activists [2].

Despite opposition, several South African gay rights organizations formed in the late 1970s, during the time when the ruling National Party strengthened the national sodomy law in 1976. However, until the late 1980s gay organizations were often divided along racial lines and the larger political question of apartheid. The Gay Association of South Africa was a predominantly white organization that initially avoided taking an official position on apartheid, while the Rand Gay Organization was founded as being multi-racial and in opposition to the racist political system of apartheid [3] [4].

From the 1960s to the late 1980s, the South African Defense Force forced white gay and lesbian soldiers to undergo various medical "cures" for their sexual orientation, including sex change operations [5]. The treatment of gay and lesbian soldiers in the South African military was explored in a 2003 documentary film, entitled Property of the State.

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

To some extent, the outbreak of the HIV-AIDS epidemic in South Africa, forced LGBT South Africans to reveal their sexual orientation, in order to be able together to fight the spread of the disease and to ensure that those that are infected have access to life-saving medicines.


In 1993 the African National Congress endorsed legal recognition of same-sex marriages, and the interim constitution opposed discrimination on the basis of sexual orientation. 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. As a result, 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 prohibiting homosexual conduct between consenting adults in private, violated the Constitution.

In 1998, Parliament passed the Employment Equity Act. The law protects South Africans from labour discrimination on the basis of sexual orientation, among other categories [6] In 2000, similar protections were extended to public accommodations and services, with the commencement of the Promotion of Equality and Prevention of Unfair Discrimination Act [7]

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 the opposite gender, and gave the South African Parliament one year to pass legislation which would 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 can refuse to solemnize same-sex unions.[8] Not all ANC members supported the new law. Current South African President Jacob Zuma was among its most outspoken opponents.

Living conditions

Although the Constitutional and legal system in South Africa theoretically ensure equality, social acceptance is generally lacking, especially outside of urban areas.

In 1998, the then National Party leader denied accusations that he had paid a man for sex, by stating that he was a "Boerseun" (farmer's son), implying that homosexuality was not something to be found among Afrikaners. South African gay rights organisations called for an apology.[9]

Gay women from smaller towns (especially the townships) are often victims of beating or rape. This has been posited, in part, to be because of the perceived threat they pose to traditional male authority [10]. South Africa has no specific "hate crime" legislation; 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 the continued impunity and accused governments of turning a blind eye to reported murders of lesbians in homophobic attacks in South Africa; as well as to so-called “corrective” rapes, including cases among pupils, in which cases the male rapists purport to raping the lesbian victim with the intent of thereby “curing” her of her sexual orientation.[1][2] 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, gay people in major urban areas, such as Johannesburg, Pretoria, Durban and Cape Town, are fairly accepted, and all of these cities have a thriving gay nightlife.[11]

Cultural, arts, sports and outdoor activities play a major part in everyday South African gay life. Annual Gay pride events are held in both Johannesburg and Cape Town.[12]

Smaller cities such as Bloemfontein, Port Elizabeth and East London, too, cater for gay people.[13]

Knysna hosts the yearly Pink Loerie Mardi Gras, which attracts gay people from all over the country.[14]

Locally produced television programmes also focus on gay life. The locally produced soap Opera Egoli featured a long term gay relationship.[15]

South Africa, due to its reputation as African's most gay-friendly destination, attracts thousands of homosexual tourists annually.[16]

The official South African Tourism site offers in depth travel tips for the gay traveller.[17]. Gay-friendly establishments are situated throughout South Africa and may be found on various gay travel websites.

Gay professionals are employed at major corporate companies throughout the country. Homosexuals are also targeted through various marketing campaigns, as the corporate world recognizes the value of the "Pink Rand".

Prominent religious leaders have voiced their support for the South African LGBT community. Archbishop Desmond Tutu[18] and Dr. Allan Boesak [19] are vocal supporters of gay rights in South Africa.

Even the conservative Dutch reformed church ruled that gay members should not be discriminated against and could hold certain positions within the church. However, much criticism of the church still exista; a court has ruled against a church congregation, for firing a gay musician; the issue provoked much uproar from the gay community and within liberal circles.[20]

Summary table

Homosexuality legal Yes (since 1994)
Equal age of consent Yes (since 2008)
Anti-discrimination laws in employment Yes (since 1998)
Anti-discrimination laws in the provision of goods and services Yes (since 2000)
Anti-discrimination laws in all other areas (incl. indirect discrimination, hate speech) Yes (since 2004)
Same-sex marriage(s) Yes (since 2006)
Recognition of same-sex couples as de facto couples Yes (since 1999)
Recognition of same-sex couples as civil partnerships Yes (since 2006)
Both joint and step adoption by same-sex couples Yes (since 2002)
Gays allowed to serve openly in the military Yes
Right to change legal gender Yes
Equal access to IVF and surrogacy for all couples and individuals Yes
MSMs allowed to donate blood No

See also


External links


*Some information provided in whole or in part by