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LGBTI Equality in South Africa

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 downfall 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 first in Africa to legalise same-sex marriage. One year later an equal age of consent was achieved; after long and lengthy debate and a complete overhaul of sexual offences legislation, consent was gender-neutralized at 16.

A Short History
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. Then 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 was the first jurisdiction in the world to provide constitutional protections for LGBT people, through Clause 9.(3) of the South African Constitution which disallows discrimination on race, gender, sexual orientation and other grounds. Since 1 January 2008, all provisions that discriminate have been formally repealed—including an equalized age of consent at 16 regardless of sexual orientation, and all sexual offenses defined in gender-neutral terms.

Apartheid Years
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 and the law was used to harass and outlaw South African gay community events and political activists.

Despite the opposition, several South African gay rights organizations did arise in the late 1970s, around the time when the ruling National Party strengthened the national sodomy law in 1976. However, until the late 1980s gay organisations were often divided along racial lines and the larger political question of apartheid. The Gay Association of South Africa was mostly a white organisation that initially avoided taking an official position on apartheid, while the Rand Gay Organisation started out as being multi-racial and in opposition to the racist political system of apartheid.

From 1960s to the late 1980s, the South African Defense Force forced white gay and lesbian soldiers to undergo various medicial “cures” for their sexual orientation, including sex change operations. The treatment of gay and lesbian soldiers in the South African military was explored in the 2003 documentary film titled Property of the State.

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

In some regards, the outbreak of the AIDS-HIV epidemic in South Africa, forced LGBT South Africans out of the closet and to work together to fight the spread of the disease and to ensure that those that are infected have access to the life-saving medicine.

Post Apartheid
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 and promised to defend a right to privacy. 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.

Hence, 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 which prohibited homosexual conduct between consenting adults in private, violated the Constitution.

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

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 opposite gender, and gave the South African Parliament one year to 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, individual civil servants and clergy do retain the right to refuse to solemnize same-sex unions if it is against their individual beliefs.