028_Global12_InSight_GayRights_V4

Global issue 12

Global InsightLGBT Rights “LGBT rights were integrated into the vision of a new South Africa in which people were respected for who they were” IntervIew Albie Sachs Human rights activist and former South African Constitutional Court Judge S lesbian, gay, bisexual and transgender (LGBT) people. When we were still in exile, in 1990, in Lusaka, Zambia. The conferenceon the grounds of sexual orientation came from a conference of theWomen’s League of the ANC African National Congress, whileouth Africa has one of the most liberal constitutional and legalframeworks in the world, protecting the equality and rights of it came into force in 1996, the post-apartheid constitution prohibited adopted a decision which became ANC policy, so when it came to all unfair discrimination based on sexual orientation. Legislation has the drafting of the new constitution, the ANC recommended that subsequently been introduced to decriminalise same-sex sexual ac- the grounds of unfair discrimination – which included race, colour, tivity and equalise the age of consent. Gay and lesbian couples are creed, sex and disability – also included sexual orientation. entitled to marry, adopt children and receive equal access to IVF treatment and surrogacy services. And since 1998, homosexuals Was the provision immediately accepted from when it was have been allowed to serve openly in the South African military – the first adopted? only African country to guarantee this particular freedom. There was a lot of discussion. It wasn’t the central issue – the struc- Despite this, the LGBT community still faces discrimination and ture of government, the powers to be given to the provinces and the violence, especially in poorer and non-urban areas. The brutal kill- outlawing of race discrimination were central to the debates – but it ing in June of Thapelo Makutle, a young gay man from the remote was certainly debated inside and outside parliament. It was a lively, Northern Cape province, and media reports of ‘corrective rape’ – a spirited debate but it was just part and parcel of a whole range practice in which lesbians are raped in an effort to convert them of questions; capital punishment was another one that people had to heterosexuality – illustrate the findings of recent social surveys strongly held views on. and human rights groups: that public attitudes in South Africa lag My own sense is that in South Africa the right to be different behind the ideals of the constitution. became important for people, because the great majority of the na- Albie Sachs, a lawyer and human rights activist who was impris- tion had known what it was like to be penalised and excluded and oned and later exiled by the apartheid regime, was appointed to the pushed to the margins of society because of who they happened to Constitutional Court of South Africa by President Nelson Mandela be. There was a fairly active movement for gay and lesbian rights in 1994. He is the author of the court’s 2005 ruling granting same- that certainly contributed a particular voice to the debates. But I sex couples the legal right to marry and talks toGlobal about the think the reason why the democratic breakthrough came was that implications of this landmark judgement, and the lessons that other it was seen as integrated into the vision of a new South Africa in countries can learn from South Africa’s experience. He admits that which people were respected for being who they were. the country has deeply entrenched “pockets of intense homopho- bia” but nonetheless feels that public acceptance of homosexuality In 1998, the Constitutional Court ruled that the law prohibiting ho- has progressed far quicker than could have been expected. mosexual relations between consenting adults in private violated the constitution. What were the circumstances that led to this ruling? And Global: South Africa’s post-apartheid constitution was the first given the clause in the new constitution, why hadn’t the laws crimi- in the world to outlaw discrimination on the grounds of sexual nalising homosexuality already been removed from the statute book? orientation. Why did the framers of the constitution take such a The gay and lesbian movement decided to affirm their constitu- bold and groundbreaking step? And given the cultural prejudice tional rights and to have the penalisation of sodomy declared un- against homosexuality within both the white and black communi- constitutional. The matter came to the Constitutional Court and the ties of South Africa, how was this possible? court declared that that aspect of the common law violated funda- Albie Sachs: It was part of a very comprehensive equality provi- mental rights. Although it was directly concerned only with the sion. Equality in post-apartheid South Africa was fundamental: we crime of sodomy, I think it’s fair to say that the judgement made are a nation of people of different origins, different appearances, it clear that it wasn’t simply the act of anal penetration by a man different languages, different cultures, and the idea that we all have with a man that was at stake; it was the status and the dignity of to live together without being marginalised because we are who people, rather than the particular act, that was at issue. The court we are was central to the very notion of the new democratic, non- unanimously ruled that it was unfair discrimination. And it wasn’t racial, non-sexist South Africa. simply what people did in private that was protected, but the right The initial spur for an express reference to non-discrimination to equality and dignity. It was saying, in effect, that everybody who 28 lwww.global-briefing.org fourth quarter 2012global


Global issue 12
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