SAR, Vol 13 No 3, May 1998
GAY AND LESBIAN RIGHTS:
FORCING CHANGE IN SOUTH AFRICA
BY MAZIBUKO JARA
Mazibuko K. Jara is Coordinator of the Equal Rights Project of the National Coalition for Gay and Lesbian Equality, South Africa. The article was written in his personal capacity.
12h15, 10 December 1996. Thousands of people gather at Sharpeville stadium to watch President Mandela assent to the final Constitution of South Africa. There are few banners displayed, a small section of the crowd is singing and the general mood is sober. The promise of equality, justice and social development entrenched in the Constitution is yet unrealized. Hunger, inequality, joblessness, homelessness and violence are rife.
About ten lesbians, gays and supporters hold up the banner of the National Coalition for Gay and Lesbian Equality (NCGLE) inscribed with the slogan "Equality for All!" This small group came to celebrate the formal inclusion of sexual orientation as a ground for equality and non-discrimination in the final Constitution and to pay their respects to all those who died fighting for equality and justice. The NCGLE had achieved its first objective.
August, 1997. The NCGLE and the statutory South African Human Rights Commission bring a high court application for the decriminalization of same-sex conduct. A month later, the Minister of Justice, ANC member Dr. Dullah Omar, announces his opposition to the court application. In November 1997, this application is heard unopposed by the Johannesburg High Court.
December, 1997. The ANC takes a formal resolution at its 50th National Conference in support of lesbian and gay rights including the equal right to marry.
January 1998. The ANC Minister of Safety and Security, Sidney Mufamadi opposes a court application challenging discriminatory provisions in the Police Medical Aid. The discriminatory provisions are set aside in February 1998. In March, the Police Medical Aid appeals the judgment.
Step 1 - advances; step 2 - reversal; step 3 - struggles; step 4 - maybe final victory! Every day, every week, every month: this is the beat of the story for lesbian and gay equality in South Africa.
Equal under the constitution
The NCGLE was the primary agent in securing an equality clause which includes sexual orientation in the final Constitution. The coalition was formed in December 1994, at a conference of 40 lesbian and gay activists from 32 South African organizations. The mandate, determined at the conference, was towards ensuring that the final Constitution retained sexual orientation as grounds for non-discrimination.
Sexual orientation had been included in the equality clause of the Interim Constitution. Its inclusion was, however, a result of a commitment to human rights and a constitutional order by the ANC, the coming-out and involvement in progressive lesbian and gay organizations of a significant number of black lesbian and gay anti-apartheid activists, and lobbying by the Equality Foundation, a trust to raise funds for lesbian and gay equality work in South Africa. The inclusion of sexual orientation in the clause had little to do with the broader strength or mobilization of the lesbian and gay community.
So the NCGLE was breaking new ground in leading the constitutional lobbying campaign. Prior to its formation no organization had experience organizing gays and lesbians on a national scale. In fact, most organizations had never worked together prior to 1994, and were marked by their racial, gender and political differences. Thus the constitutional lobby campaign represented an unprecedented opportunity for lesbian and gay organizations to unify, critical in the development of a vibrant movement. The campaign was also the first opportunity for the coalition to come into contact with the government, its structures and processes. Remarkably, parliamentarians and most political parties were open to listen to the NCGLE's message.
The NCGLE decided to make a limited intervention, directed solely at lobbying the Constitutional Assembly (CA). The main aim was to neutralize or isolate the African Christian Democratic Party (ACDP), which was taking a vocal, hard-line stance against the clause. Every political party, even the Freedom Front, was lobbied to ensure that they did not support the reactionary positions of the ACDP.
The coalition chose not to raise contentious political issues, feeling that these would undermine the political message which everyone understands: "Equality for All!" Issues such as marriage, adoption, or gays in the army could have divided the weak ranks and allies, and united the opposition, allowing conservatives in the ANC and the Government of National Unity to abandon their support for the Equality Clause. As it was, the coalition faced the threat of mass mobilization by the religious right, a threat which became real when the ACDP mobilized 10,000 people to march on the CA against the "secular state" and for a "Christian Bill of Rights."
The NCGLE strategy was criticized by many individuals and organizations. The debates on whether to mobilize "mass" support and how to do this, whether or not to organize demonstrations and marches, still lingered months after the equality clause was secured. But a campaign of civil disobedience would have been inappropriate because the ANC was already programmatically committed to lesbian and gay equality. Thus the campaign focused on strengthening the understanding and acceptance by allies in the Constitutional Assembly of NCGLE arguments. The structure of the coalition, open to every gay and lesbian organization which agrees to its objectives, also shaped the campaign. NCGLE unites individuals who hold different political and social viewpoints, organizations with a predominantly black membership, those with only white members, with only women members, with a predominantly male membership, strong and weak organizations. Members of the coalition include poor unemployed township youth who remain marginalized and invisible, and affluent, visible and prominent individuals.
Through the constitutional lobbying campaign, the NCGLE gained access to the corridors of power, which can be utilized effectively again to change the lives of ordinary gays and lesbians in South Africa. In addition to the equality clause, the coalition has secured numerous legal advantages in that Ministers, Directors-General, Government departments, religious bodies, employers and some trade unions now recognize gay and lesbian equality as an important part of civil society. The existence of a national coalition for gay and lesbian rights has provided useful authority and authenticity for lobbying and representation purposes.
Strengthen and consolidate
Currently, the NCGLE is working to strengthen and consolidate its lobbying capacity and advocacy on behalf of gay and lesbian rights. The organization has established working relations with over 100 organizations nationally, government departments, and networks throughout Southern Africa, raised gay and lesbian equality issues in the workplace with 200 employers and 60 trade unions, and taken up hate crimes and violence against the gay and lesbian community from private citizens and members of the police. The goal is to continue to engage these sectors until sexual orientation ceases to be an index of differentiation.
A court application was launched on August 22, 1997, against the Sexual Offenses Act and the Criminal Procedure Act, which criminalized same-sex
conduct between two adult men. The court application was followed by mobilization of allies in NGOs, the ANC, and NCGLE affiliates. It provided the lesbian and gay community with the most sustained media coverage in 1997, coverage which was generally supportive. Throughout the campaign, key civil society organizations provided unwavering support. The matter was heard, unopposed, in November 1997.
Support from other organizations may prove valuable, for other legal battles loom. There are cases where same-sex couples have been denied the right to adopt children, or the right to claim custody of children. The Coalition is taking up two cases, to be heard before the end of 1998. Also underway is a campaign for the legal recognition of gay and lesbian marriages.
Struggles in the workplace
The Constitution and the Labour Relations Act guarantee lesbian and gay equality and non-discrimination in the workplace. This extends to employment benefits: if lesbian and gay employees want to register their lover in an employer-sponsored medical aid plan, they should be able to do so. But in practice, the position of gay and lesbian people in the workplace has changed little, even with these two non-discriminatory acts in place. Many employers still refuse to register partners of lesbian and gay employees on their employment benefits.
One rarely finds a company policy which explicitly states that gay and lesbian employees are to be discriminated against. But the restrictive definitions society has given to concepts such as marriage, relationship, spouse, dependent and family form the basis for the exclusion. There are several employment discrimination cases against ESCOM (the publicly owned electricity corporation), the South African Policy Services, and the Standard Bank.
In the case successfully brought by Jolanda Langemaat against the Police Medical Aid, the judgment dismissed the argument that it will cost too much to admit same-sex partners into the medical aid scheme. Could the medical aid program have even tried to make the same argument if the group of people excluded by its rules were black? It seems as if very few employers understand the implications of the equality clause in the constitution as it relates to non-discrimination on the basis of sexual orientation and marital status. Currently, the number of employers in South Africa who can be regarded to have progressive policies on sexual orientation do not even number ten, and most of these few are universities.
The Coalition has also published policy proposals for a code of good practice on sexual orientation and the workplace. These policy proposals have been submitted to the Department of Labour and trade unions for consideration. Trade unions have not been cooperative in promoting lesbian and gay equality in the workplace, however. They will not publicly oppose equality for gay and lesbian workers because they do not want to be seen to oppose the Constitution. It is known, however, that several trade union leaders do not wish their unions to be "side-tracked." The arguments that homosexuality is un-African and workers will not understand lesbian and gay issues are raised as barriers to progressive union policies on lesbian and gay equality in the workplace.
One of the greatest threats to full, permanent citizenship rights for all lesbians and gays is the belief that homosexuality is un-African. The reality is that the majority of lesbians and gays in South Africa are poor. They remain marginalized from the social and economic mainstream and exist separately from the emerging gay and lesbian equal rights movement which is, in turn, poorer without them.
Future NCGLE work, and that of locally based organizations, must build a movement which is as much a home for poor lesbians and gays as it is for those with access to employment and social services. As long as the perception persists that most homosexuals are wealthy white men, life will be all the more difficult for township lesbians and gays. Building a vibrant gay and lesbian movement will depend on developing an activist and leadership base which is representative in terms of race, gender and class.
What factors will secure equality and justice for all? Which organizational forms can ensure we change the tune of our song to permanent equality and justice for all? Is permanent equality possible? What influence will homophobic Zimbabwe have on South Africa? These are just some of the questions the NCGLE and other progressive NGOs continue to grapple with in implementing our Constitution. Our responses to these challenges will determine the fate of human rights, equality and justice in South Africa. Without the support of the majority of African people for equal rights for lesbians and gays, no one, not even the powerful, can be confident that they will ever live in a society that is free from discrimination.
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