May 14, 2003

V. Realizing Rights: The Challenge of South Africa

No one can write about the countries of the region without recognizing South Africa's influence, and difference.  Both stem from the same sources: its comparative wealth, the length and example of its struggle against white rule, its diversity, its size.  We treat the South African experience in a discrete chapter here to acknowledge its uniqueness, but also to stress how important its model is for the rest of the region.  The model is not exclusively positive.  States can learn not only from South Africa's successes, but from its challenges and failures in implementing a sweeping commitment to remedy abuses and achieve change.

South Africa has one of the most progressive and inclusive constitutions in the world.  It has extended human rights protections across the board, acknowledging the respect due to diversity in a way that the ideologies, prevalent in many countries, of "national unity" or "cultural authenticity" still prevent.  In particular, the South Africa government has shown, in the word of law, an unprecedented African commitment to acknowledging and upholding the human rights of lesbian, gay, bisexual, and transgender residents and citizens.

The word of leaders has not always matched the word of law.  Activists complain that the South African government has not made public, unequivocal statements against the discrimination lesbian, gay, bisexual, and transgender people still face.  Nevertheless, the manipulation of homophobia common elsewhere in southern Africa, while still practiced occasionally in the country, has not become a common feature of political life. South Africa is the only country on the continent to have openly gay and lesbian bars, newspapers and magazines, NGOs and community centers.  It even has, in Cape Town, a tourist industry catering to gay visitors.  Many gay and lesbian people from surrounding countries told us they hoped, someday, to emigrate to South Africa.

Yet these benefits are only enjoyed in practice by a relatively affluent few.  South Africa's promises of equality rose against a background and history of radical inequality. Poverty as grim as the worst shantytowns in Lusaka can be found a few miles, or blocks, from shops and offices as posh as anything in London. That gross disparity cuts across lesbian, gay, bisexual, and transgender lives.  The institutions tourists see still cater to a small minority within South Africa.  Most of the population is still shut off from accessing them-or from experiencing the freedoms described on paper ¾ by deep economic inequity, social isolation, and cultural exclusion.

Mike Waters, from the opposition Democratic Alliance, a white man and the only openly gay member of Parliament, told our researcher, "There is a vacuum between what the constitution says and what is happening on the ground."[407]  From a very different vantage, Joyce, an African, HIV-positive lesbian living in Soweto, and a survivor of multiple rapes and acts of violence, said, "I think our constitution is there-but it's something that's written but is not being practiced."[408]

A.  Equality and the Law

To the extent that a more liberal atmosphere for gay and lesbian people has arisen in South Africa, most would attribute it to the constitution's Equality Clause.  Derek, a gay man in Cape Town, told us, "Things have gotten easier since the constitution passed.  Everyone knows about their rights-not necessarily knowing what they are, but they know they have rights."[409]  Activists fought long and hard to secure a constitution containing protections against discrimination based on sexual orientation. Its final passage in 1996 was greeted by celebrations in gay and lesbian organizations and communities.

Writing in 1993, Edwin Cameron, an openly gay South African jurist and now a judge on the Supreme Court of Appeal, had listed the potential consequences for lesbian and gay people of obtaining protection in the final constitution:

· The decriminalization of gay sex acts, by abolishing the common law crimes of sodomy and "unnatural sexual offences," as well as provisions of the Sexual Offences Act which also criminalized such acts;[410]

· A uniform age of consent for homosexual and heterosexual sex;

· Guarantees of free speech and association;

· Laws against discrimination based on sexual orientation, including [in] such areas as employment, tenancies, provision of public resources and services, and insurance;

· Formal recognition of permanent domestic partnerships, including partner benefits in pensions, medical aid, immigration and insurance; rights of intestate inheritance; fair and non-discriminatory assessment of abilities in relation to adoption and child care; and legal standing to act on behalf of a partner who has lost the ability to make conscious choices.[411]

Almost a decade later, what has actually been won?

In the courts, a great deal.  The new South Africa has a powerful court system, in which the Constitutional Court (and, to some extent, the High Court) can strike down unconstitutional provisions and practices, and even rewrite, or "read" new language into, existing legislation.  Years of constitutional litigation have turned some of Cameron's hopes into law.  The Gay and Lesbian Equality Project, an advocacy and legal service NGO and the successor organization to the National Coalition for Gay and Lesbian Equality (NCGLE), proudly lists cases-many of which it filed or participated in-which have brought forward the judicial understanding of sexual orientation and the law.

Most importantly, the first of Cameron's expectations has been fulfilled:

1998: National Coalition for Gay and Lesbian Equality et. al. v Minister of Justice et. al.The Constitutional Court of South Africa overturned the common-law offence of sodomy; section 20A of the Sexual Offences Act; the listing of sodomy as an item in schedule 1 of the Criminal Procedure Act; and other mentions of sodomy in law.[412]  The court found that they violated constitutional protections for equality, privacy, and dignity.  The criminalization of consensual homosexual conduct disappeared from South Africa.

Other cases have formalized recognition for lesbian and gay partnership rights:

1998: Langemaat v Minister of Safety and Security.   The High Court ordered that a state medical scheme recognize the same-sex relationship of an enrolled member and extend spousal benefits to the partner.[413]

1999: National Coalition for Gay and Lesbian Equality et. al. v Minister of Home Affairs et. al. The High Court and, on appeal, the Constitutional Court ordered that same-sex partnerships be recognized for the purpose of granting residence permits to the foreign partners of South African citizens and permanent residents.  The decision overturned section 25(c) of the Aliens Control Act, which restricted those immigration benefits to married couples alone.  The Constitutional Court thus recognized "permanent same-sex life partnerships," saying that in immigration, at least, they deserved the same benefits as married people.[414]

1999: Martin v Beka Provident Fund.  The Pension Funds Adjudicator-a special division of the High Court of South Africa-ordered that same-sex partnerships be recognized for the purpose of receiving survivors' benefits from pension funds. Importantly, the decision held this right does not depend on an explicit direction from the deceased partner in a will.[415]

2002: Satchwell v The President of South Africa and the Minister of Justice.   The High Court and, on review, the Constitutional Court found that same-sex partners must be included in benefits given to the spouses of judges under the Judges Remuneration Act.  The Constitutional Court ordered the act changed to include, after "spouse" in the delineation of benefits, the additional words "or partner, in a permanent same-sex life partnership in which the partners have undertaken reciprocal duties of support."[416]

A series of decisions in the 1990s gave a gay or lesbian parent equal rights in custody decisions about children after a divorce.

1993: Van Rooyen v Van Rooyen.  Even before the Equality Clause in the new Constitution entered into force, a court ruled that a divorced mother could not be denied access to minor children because she was participating in a lesbian relationship.[417]

1998: Greyling v Minister of Welfare.  The High Court overturned a magistrate's decision removing a child from a lesbian mother and giving her to her grandparents solely because of fear that the child would suffer psychological damage because of the lesbian relationship.

1998: Mohapi v Mohapi.  The High Court awarded full custody of a child after a divorce to the mother, now involved in a stable lesbian relationship.

A recent decision says that gay and lesbian people can care for children not just as individuals-but recognizes adoption rights for same-sex partners:

2001: Du Toit and De Vos v Minister of Social Welfare.  A High Court judge ordered "read into" the Child Care Act and the Guardianship Act new language which allows lesbian and gay couples to be joint, legal parents of a minor adopted child.   Specifically, he ordered (similarly to Satchwell) that "spouse" in the acts be complemented with the words "or the two members of a permanent same-sex life relationship." At the time of writing, the case is now awaiting review by the Constitutional Court (see also below).[418]

Evert Knoesen, coordinator of the Equal Rights Project at the Equality Project, describes what has been the NGO's long-term litigation strategy:

First it was essential to get sodomy laws repealed.  They were a basis, clearly, for relegating lesbians and gays to a second-class status in the law.  After that, we would move on to partnership recognition.  To approach this through immigration benefits as a beginning meant getting them recognized in the realm where there would be the least financial implications, and the state would be least threatened.  From there, we would move into areas where we would leverage recognition of real, economic benefits for gay and lesbian people, and couples.[419]

 

So far, the strategy has been a success.  Yet questions arise. Despite the governing African National Congress (ANC) party's formal commitment to gay and lesbian rights, the state has contested in court almost every single precedent-setting case meant to define those rights under the Equality Clause-including defending the constitutionality of sodomy laws themselves.  When the High Court has found against the government, it has regularly appealed.  "They fight everything they can and some things they can't," says Evert Knoesen.[420] Although the government's determination to appeal decisions to the Constitutional Court arguably assists in arriving at a single ruling binding on all other courts within the judicial system, such an insistent state combativeness can also undermine a culture of rights.

Moreover, the litigatory approach to change is slow, halting, and subject to sudden derailments.  Knoesen says, "We live in fear of rogue lawsuits that might challenge courts in ways they, or we, aren't ready for."  The fear reflects the piecemeal manner of pursuing protections through the courts.  Judges rewrite the language of laws bit by bit, decision by decision, assembling a patchwork of uneven progress; but legislation attuned to the spirit of the Equality Clause could achieve quicker, more comprehensive change.

Nevertheless, a range of positive protections have indeed been written into legislation:

· The Labour Relations Act (1995) bars unfair dismissals, including dismissals on the basis of sexual orientation. 

  • The Employment Equity Act (1998) bars unfair discrimination "in any employment policy or practice," which would include benefits such as pensions and insurance, on all the grounds listed in the Equality Clause, as well as "family responsibility" and "HIV status."
  • The Medical Schemes Act (1998) defines a "dependant" so as to include same-sex partners, as well as unmarried heterosexual partners.
  • The Rental Housing Act (1999) bars discrimination in rental housing on all the grounds prohibited in the Equality Clause, including sexual orientation.
  • The Domestic Violence Act (1999), allows any person in a "domestic relationship"-effectively meaning any cohabitation between people who are not close blood kin but living in the "same residence"-to get a protection order against abuse.  It replaced an older Family Violence Act which had stipulated that protection orders were only available to married people.

Most sweepingly, the Promotion of Equality and Prevention of Unfair Discrimination Act (2000), or "Equality Act," commits the government to "promote equality" on all the grounds in the constitution's Equality Clause. Barring discrimination in all spheres of state activity, it also implements the constitutional ban on discrimination by private actors.  However, the specific mechanisms for redress created by the act focus on gender-, race-, and disability-based discrimination.[421]

Yet serious legal disparities remain. 

Homosexual sex was legalized by the Constitutional Court's decision; but the age of consent remains unequal-sixteen for heterosexuals, nineteen for men having sex with men.[422]

Moreover, South African law on rape is confused and discriminatory.  Rape is defined as non-consensual penetration of a vagina by a penis.  Other forms of rape-including the rape of men by men, or women by women-would be charged only as "indecent assault," which carries a lower penalty. 

Finally, the courts' recognitions of gay and lesbian partnerships in specific situations are still far from leading to a comprehensive rewriting of laws on marriage-or a clear understanding of what legal status same-sex partnerships actually can enjoy.

Encouragingly, the South African Law Commission has, at the government's request, undertaken a major review of the law on sexual offenses, engaging in wide consultation on a new Sexual Offences Act.[423] Draft proposals included the redefinition of rape in gender-neutral terms, including criminalization of homosexual rape. While the process has been subject to long delays, a final report on the commission's recommendations was due to be published in time to enable the Department of Justice and Constitutional Development to introduce a bill before Parliament in 2003.[424]

Yet parliamentarian Mike Waters still points to "insufficient alignment" between the constitution and the laws. "And beyond law," he asks, "what happens on the level of policy? Do they actually look at policies and run them all through the filter of every status in the clause to see who might be directly or indirectly discriminated against? Or do they quietly leave some of them, like sexual orientation, out?" Waters has asked a formal question in Parliament of every minister, demanding whether their department retained regulations discriminating against gays, women, or the disabled.  "If I were the president," he says, "I would ask every minister to go through all regulations and see where they contradict the constitution. There should be a delegated researcher in every department to evaluate policy in constitutional terms."[425]

Parliament's docket is admittedly overcrowded¾and despite that, legislative progress has been made. Yet the issues go beyond the letter of the law.  They cut to the core of how the government reaches out to, and defends, the people it claims to represent.  Many people interviewed voiced skepticism about the government's commitment to the rights of gay and lesbian people, given the relative silence of officials on those issues-including national, provincial, and city representatives; and the lack of resources steered toward safeguarding those rights.

B.  Persisting Prejudice, Ongoing Abuse

1. Violence and discrimination in the community

Law and litigation have not filtered down to the level of everyday life.  The fact of prejudice against lesbian, gay, bisexual, and transgender people persists, and the state has done little to counteract it.

In communities across South Africa, people reported to us that a concept of homosexual conduct as "un-African" remains powerful, and repressive.[426]  Many of our interviewees, straight and gay, called it the single most common condemnation they hear.

 Nonceba, a heterosexual African woman from Eastern Cape, told us that "Folks say homosexuality was brought in by whites to spoil our culture.  It is evil to mention it at all."[427]  Diwysa, a heterosexual African woman from the same province, described how homosexuality is seen within her rural community: "People say it is a demon.  We don't talk about sex to begin with in black culture, and our elders do not mention homosexuality at all…. People use culture as an excuse not to understand."[428] Tsembani, an African gay man who is the coordinator of the HIV/AIDS Program at the Durban Gay and Lesbian Community Health Centre, says, "When I do my trainings [for healthcare providers, on gay and lesbian rights] people always say to me 'homosexuality does not exist within the black culture,' that it 'came with white culture.' … They try to put the culture up as a shield.'"[429] 

Thulani Mhlongo, a gay man from Soweto who leads the Township AIDS Project and SOHACA (Soweto HIV/AIDS Counselors Association) and is a longtime activist for gay and lesbian rights in South Africa, encounters such attitudes often.  He says, "The oldest argument against homosexuality is that it is not a part of traditional African culture, especially in rural areas.  But I work with traditional healers who acknowledge that it has always existed."[430]

Charmaine, a member of an African lesbian support group organized in Gugulethu by the Triangle Project (a Western Cape lesbian, gay, bisexual, and transgender advocacy and service organization), told us: "In the black community it says that there is no such thing as gay and lesbian.  In white and coloured communities, there is no culture and so they learned about things in school. Black communities didn't have the same kind of education and so we didn't have the opportunity to learn about these things in school." Another member of the support group said, "For example I was told in school that bisexual meant someone with two sex organs.  It wasn't until I got to the Triangle Project that I understood."[431]

Yet the power of "tradition" is not unique to African life in South Africa.  The comment that there is "no culture" in coloured communities may imply that there is no codified body of customary law there; it also may be a way of saying, disparagingly, that mixed-race people lack cohesive traditions of their own.  Some coloured people endorse comparable ideas as well.  Vainola Makan, a coloured lesbian who works with Khib Women's Center-an African women's organization dedicated to the empowerment and emancipation of women-stressed that coloured communities do not focus on custom or tradition as sources of value. "If you are part of a Zulu or Xhosa or Venda commmunity it will be more difficult for you."  On the other hand, another feminist activist,  Bernedette Muthien, vigorously disagreed:

If coloured communities are not hierarchical and patriarchal then I don't know what is.  Within that, they rigidly police and socialize you, so much so that you are struggling around your sexuality and cannot be open and fluid and deal with a larger sexuality…. Coloured communities are governed by a Christianity that is just as patriarchal as customary law.[432]

Meanwhile, Vasu Reddy, of the Durban Gay and Lesbian Community Health Centre, spoke to Human Rights Watch of the role of the traditional in Indian life in South Africa:  "The challenge from within Indian communities is a debate that homosexuality is generally unnatural, deviant, not normal….  There is a tightly knit family structure, a very patriarchal structure, and homosexuality challenges that.  Only in the last ten years has there been a kind of visible Indian lesbian and gay subculture in South Africa."[433]

Whites in South Africa also have a "culture," or several cultures; some can be as rigidly repressive as the African customary systems whites describe and, when convenient, decry.  Mazibuko Jara, formerly an activist with the National Coalition for Gay and Lesbian Equality, told us,

Do you think if you go to Northern Province or Pietermaritzburg and talk to some little group of Afrikaner farmers you'll find they are so loving and accepting of their gay sons, where in the townships they are not?  Don't be ridiculous. It's a racist notion.  Homophobia doesn't come from one culture as opposed to another.  It comes from isolation and traditionalism.  . . .  Apartheid brought homophobia in because they felt threatened and they wanted to circle the wagons, hang on to the Afrikaner's traditional family with a servant wife bearing sixteen sons to the farmer…. And then homophobia came to the townships because apartheid cut them off from communication and change, and put them on the defensive where the family was all people had to hang on to.  It is more violent [for LGBT people] in the townships because there is more violence generally in the townships.  But there is not more hatred there. [434]

Our own interviews suggested that a homophobia phrased in "cultural" terms may also reflect personal and even professional feelings of powerlessness.  As a way of sounding out some deep-set ideas about sexuality and culture, Human Rights Watch researchers conducted interviews with more than a dozen heterosexual women in two groups from the Eastern Cape regarding their feelings towards lesbians and gay men. The interviews were conducted on the condition of anonymity and with the assistance of an NGO. Most of the women interviewed worked as organizers and peer educators addressing violence against women in their cities and towns throughout the Eastern Cape.[435]

The women were almost uniform in their discomfort with lesbianism and homosexuality.  One woman described homosexuals as loud, alcoholic, and untrustworthy.[436]  Another said, "They are possessed by the devil, they have forked tongues.  If we find them, we beat it [the devil] out of them. If we can't, we drive them out of our village."[437]

The more the women talked about their feelings about homosexuality, however, the more evident their frustration became over taboos on discussing sexuality that hampered their work on violence against women.  The enforced silence contributed to women's general lack of control over their sexuality¾and lesbians seemed to some speakers, on further discussion, to be victims of that silence as well.  "People are very quiet," one woman said.  They don't want to talk about sexuality.  They don't want to talk about being raped."[438]  Another woman from a rural community added, "But there are lesbians, they hide because they fear the repercussions.  They would be ostracized.  Besides we can't talk about it because women take whatever men say. Women don't have a voice even if they have an idea."[439]

Silence translates into isolation and abuse.  The situations some young gays and lesbians face at home or in school are similar to those their counterparts confront in Zimbabwe or Namibia.  Some people are bullied or commanded to change appearance or behavior.  Lamour, a young lesbian in  Durban, told us: "There was a lesbian at school who wanted to wear pants, not skirts.  The rules said pants were not for girls.  The teacher didn't let her write her exams unless she wore a skirt."[440]

Lebo, in Durban, told Human Rights Watch that "there's prejudice at my home. My gay friends can't visit, my father chases them away.  My mother would be willing to accept me, but my father changes her response.  I enjoy the gay life but it's hard to have only this life.  I'm afraid the gay life will drive me out of my home."  His parents had heard that he was gay from gossiping neighbors, and confronted him. "They said, 'Choose your family or this lifestyle.'"[441]

"Maria," a twenty-three-year-old lesbian in Mamelodi, was driven out of her home in 1996 by her mother when she came out.   She reports that later, in school, "Once the kids said to me I was a lesbian because I had a vagina that didn't close.  It was overheard by a teacher, who called me to the office and asked point blank if I was a lesbian.  I said yes.  I was suspended from school about a week later when another girl and I were accused of sleeping together.  The other girl was suspended also.  But I was strong enough to go to school in that environment.  No one will chase me away."[442]

Pubs and gathering places are often dangerous. Simon, a gay man in Mamelodi, says, "I get harassed in pubs now by straight men-they will come on to me and then if I don't accept the flirtation, they might hit or slap me.  I often fight with boys after clubbing; straight men hang outside or inside the clubs. I think the police equate rape and gay sex.  If you go to them and say you were raped, they will say you wanted to have sex, that you went wherever you were just to have sex."[443]

Beverly Ditsie, who lives in Soweto and is a long-time lesbian leader in Gauteng and nationally, says that lesbians "take  a risk going to the shebeen.  They can stand seeing an effeminate gay boy come in-they'll say, oh, he's a moffie.  But when the lesbians come in, they start the harassment.  The men keep coming on to them, saying 'Well, what are you?'  Lesbians can say, 'We are like them, the gay boys,' and the straight men still come on to them."[444]

Tutuzeni, a lesbian in Gugulethu, told us, "The men don't want the butch lesbians to enter their environment.  They fight always with butch lesbians because they think the lesbians want to be men and they are trying to protect their territory."[445]

Harassment and violence on the streets is a steady theme of people's stories.  Palesa, twenty-five years old, says,

I have found it to be more unsafe being a lesbian in public, out with a girlfriend, than when by myself. Sometimes when I am walking in town, I have to make sure we don't kiss or hold hands because of what people will say.  I feel like I have to protect her and make sure she gets home safe… I don't usually walk with straight friends, but with my lesbian friends because we are used to the harassment.  But if I walk with straight people they don't know what to do.  With my lesbian friends we sometimes swear back, but that's not my style.  I don't like unnecessary fights.  And men threaten and actually rape them because they are lesbians.

I go to town with other lesbians to feel safe.  To their homes[,] ... or I will just stay at home. I don't go to clubs really. I would love to, but I don't think they are safe…. I don't feel safe being out at night as a lesbian.[446]

Pat, a coloured lesbian from Mitchell's Plain, says that many older lesbians she knows "don't know what is going on outside and they are scared to go out…. They stay at home, and get drunk.  And feel safe."[447]

Noni, an eighteen-year-old lesbian, says that in Mamelodi where she lives,

There is an older gay man named Jacob who gets harassed a lot.  I think they leave me alone, especially because Jacob has publicly supported me.  He tells them on the street that he loves and has accepted me.  Most people in the community don't talk to Jacob.

Once last year, when I was seventeen, the boys in the street wanted to beat me and my friends up.  Four boys came up to us and told us that they were going to take us and rape us…. They had told some of my friends before that they were going to rape me.  My friends and I had gone to the shop and these boys got angry. They asked, why are you coming in here? Go away.  We're going to take you. Jacob helped us, he told them to leave us alone, that they would have to deal with him if they were going to try and hurt us.  These boys are afraid of Jacob.

We went to the police station to report it right away.  I was worried that if I didn't report it, and was walking around at night, these boys would try it again.[448]

The police were fair and helpful, she says: but she adds, "I wanted to find more support.  But there was nothing."

Harassment does not just come from within one's own community; and it may intersect with other forms of hatred. Katlego, twenty, from Mamelodi, says she had few problems in the township. But when she moved to Pretoria and attended a predominantly white school, "I was harassed at school regularly, either because of my sexuality or because of my race.  I was called both 'kaffir' and 'moffie'-same folks saying both things."  In Pretoria,  she says, "I had stones and bottles thrown at me."[449]

 The abuse lesbian, gay, bisexual, and transgender people face can take brutal forms. Most lesbians we spoke to believe they are disproportionately likely to be victims of rape.  In the absence of adequate statistical investigation, the evidence is anecdotal; the fear, though, is palpable.  In Cape Town, Bernedette Muthien says,

Lesbians are particularly targeted for gang rape.  African lesbians are more likely to be raped as lesbians in the townships.  To what extent are coloured lesbians also targeted for rape because of their sexual orientation? There are no statistics for this, I don't know what percent of coloured lesbians are targeted for corrective rape action.  Growing up, I never heard that lesbians were targeted in this way and so I want to know when that started happening.  Gangsterism has always existed in the townships, so you can't attribute it to that.  I don't know why black lesbians are targeted more, either.  I'd like to know how many women are being raped by brothers, fathers, etc., in coloured townships.  Why is no one studying this?  Has it just been under-reported, not studied, or what?[450]

There is a massive rate of rape and gender-based violence in South Africa.[451]  It is difficult to distinguish particular factors and prejudices contributing to individual cases.  Collection of statistics by the South Africa Police Service (SAPS) is often insufficiently detailed to allow tracking different types of offenses in ways that could inform policy and state response to abuse.  As with many other types of offences, no specific 'crime code" exists to identify assaults believed to based on sexual orientation in the general collection of crime statistics; nor are stations mandated to collect such reports.[452] Beverly Ditsie says, "There are no statistics being maintained" by police or other professionals "about rape based on women's sexuality.  No categories at all.  It's not like they ask, even."[453]

Joyce works with people in Soweto on changing their sexual behaviors and norms.  She is also a mother and a lesbian openly living with HIV/AIDS.  She has been gang-raped.  And, she says,

My daughter was raped when she was six because of my coming out and telling people about HIV.  They were trying to shut my mouth….  I was only happy that she was not infected, although she was young. It makes me angry but I'm working on that.  It's been three years but she's fine and she's a very clever child….

I was working at Baragwanath [Baragwanath Chris Hani Hospital in Soweto] doing voluntary work…. Most of the people I was seeing were from my community.  So [the rapists] were trying to say, "Look, you don't have to come here, you're not a doctor, you don't have to tell us how to live although we're HIV-positive."[454]

Joyce says,

in Soweto when you come out and say, "Hey, I'm a lesbian," …they're always seeing lesbians and asking "Where are they from? They're not from here, we don't see people like this."  Then you find out that it's because of their sexuality why women are being raped.  Even men who are gay are being raped….

Des'ree, a member of the Triangle Project's Black Lesbian Support Group in Gugulethu, told Human Rights Watch that

About a year ago, I went out with my girlfriend, we went out and had a few drinks.  We were about to leave to go back to my home, and as we were walking out, a guy followed and grabbed my girlfriend. He asked me if it was OK, he just wanted to talk to her, and I said fine-they were neighbors.  I was standing near them and I heard her say she didn't want to speak to him any more. I went to say, she doesn't want to speak to you, and then the whole thing started-where he knew we were going out together, and he was trying to get to me through her.  He told me I was depriving him of a girlfriend and told us that he wouldn't let her go, and we struggled with him for a while and I saw him getting more violent-I saw him pulling out what I thought was a knife so I ran home and got my brother and a few of his friends…. And they went with me and beat him up.  After that he never bothered us again because he knew that I am protected.  We didn't go to the police.[455]

Another member of the support group said: "Quite a lot of lesbians have been raped. Some of them are confused, scared to go to the police, they won't do anything about it." 

Violence within relationships is also a recurrent story among lesbians and gays in South Africa.  Tutuzeni, in Gugulethu, said butch lesbians "believe that they have to hit their girlfriends."  The law now gives same-sex partners the same protections as heterosexuals.  Yet many do not know about those protections, or fear to use them.  Charmaine, in Gugulethu, told us:

What's happening in the townships, you have the Domestic Violence Act and that is something that can help straight people, but when the straight women are preaching about the Domestic Violence Act, they never talk about it as though it would include lesbian relationships.  Many lesbians think it is only for straight women.  If your girlfriend is beating you, you will think, I can't go to the police and if you do go, the police will say, "What are you doing?"[456]

Pat, a lesbian remembering a relationship with a physically abusive lover, says, "I never went to the police because I did not know that they would be able to help me."[457]

2. State responsibilities: official responses to abuse

Victims' experiences with the police, and with other government agencies, differ.  They are inflected by race and class and gender-and by one's ability to articulate and defend one's own rights forcefully. Adie, a white activist in Durban, describes what happened after she was assaulted one night:  "We went to the Sunnyside police station to lay a charge."  When she told the policeman what happened, he "turned around and in his broken English said, ah, yes, yes, because they called you a lesbian. And the entire police station came to a standstill.   What it told me was that there had been a workshop in that police station about gay and lesbian rights. He didn't just ignore it.  It's not like in Zimbabwe where you fight the police and then you think I'll go to the justice system and nobody wants to hear it…. Here we have recourse."[458]

Thulani Mhlongo, who does HIV/AIDS counselling in Soweto, says,

At this point I would be comfortable going to the police.  We encourage gay men to report harassment and abuse to the police.  Here is an example of how things have changed recently.  Men have been denied service at a public clinic by a Muslim doctor, because they wore earrings.  I talked to the clinic manager; there was a witness who saw what happened.  He told me to come back, at which point the doctor apologized.  I think that happened because we told them that we would go to the Equality Project and make a court case if the behavior continued.[459]

Others report different experiences.  Joyce, a victim of multiple rapes, says,

You don't know if you'll get good police.  There are good policewomen and men, but it's hard to find them…. Some will just laugh.  But if you know your rights, if you start telling them "I'm going to report you and I know you have to help me and if you don't I'm going to take it further," that's when they'll say, "No, sorry."  But if you don't know your rights, they're not scared.[460]

The old South African Police (SAP) were reformed and demilitarized in 1994, and renamed the South African Police Service (SAPS).  The 1995 South African Police Service Act (Act 68/1995) created Community Police Forums and Boards to strengthen relationships between police and the people they served. In 1995,  SAPS banned sexual orientation-based discrimination in internal employment.[461]

SAPS has struggled to create a culture of rights awareness within its ranks.  Between 1998 and 2000, the service developed a program on "Human Rights and Policing," with a package of materials to be distributed to all police stations throughout the country.  The materials (including videos, posters, and booklets) mentioned sexual orientation among constitutional equality protections.[462]  Although SAPS promised direct trainings to accompany the packages,  it was slow to develop a cadre of trainers and begin conducting workshops; it also confronted widespread illiteracy and indifference among officers.[463]  Outside analysts noted that officers who only received the packages but did not undergo trainings showed little attitude change.[464]  And representatives of communities protected by the Equality Clause were rarely consulted about materials or trainings.[465]

Few state agencies, indeed, have invited or funded trainings by lesbian, gay, bisexual, and transgender organizations. "Where it has happened, LGBT groups have had to advocate for [trainings], then pay for the training themselves," says Wendy Isaack of the Equality Project.[466] 

The failure of SAPS to engage in outreach has contributed to continuing mistrust. Suspicion of the police is widespread, based on a past in which ¾ as Beverly Ditsie observes ¾ they were seen as "really only there to protect white properties and businesses…. I think it is a general sentiment throughout the country that you do not trust the police."[467]  But non-white LGBT people, at the least, have double reasons to distrust them: not only a history of racism, but a history of police persecution of gays and lesbians.[468]

Recent incidents have perpetuated that mistrust.  On August 17, 2002, police raided a popular Johannesburg gay club, Therapy, allegedly for liquor violations.  Police reportedly called customers "fags" and "moffies"; they described the club as a "fag joint"; drag artists employed by the club, and customers found to be carrying condoms, were mocked repeatedly by officers who searched the patrons. [469]

Such accounts of homophobia make many lesbian, gay, bisexual, and transgender people reluctant to report crimes to the police. Nonhlahla Mkhize of the Durban Gay and Lesbian Community Health Centre says, "If you are a lesbian and go to the police and say you were bashed by a guy they are likely to file it, but if you say it was with another woman-they start asking you a thousand questions instead of checking it out and following up: 'What was the person doing, what did you say?' And it becomes your fault."[470]

Beverly Ditsie says there is good reason not to go to the police. "I don't think the cops presently have a consciousness about violence against lesbians…. They don't care if you were targeted. Unless it is to make it your fault-did you take the man's girlfriend or wife? Is that why he tried to beat you up and rape you?  They are always asking why you were being assaulted, instead of, you were assaulted and we can help you."[471]

Lamour, in Durban, told us one story:

I was fighting with a taxi driver.  The driver took me on a long indirect route, he made me wait while he dropped off others-I was afraid to get out along the way and so I stayed in the taxi.  The driver kept looking at me in the rear-view mirror, then he started calling me a lesbian.  At first I thought he knew me, because I couldn't figure out how else he would know that I was gay.  But I told him that I would report him for what he said and the way he had treated me.  So I took down his registration number, and many of the other people in the taxi supported me.  But when I went to the police, they laughed in my face…. They said, "Why are you going out with a woman, why are you doing this?"[472]

Tutuzeni, in a group interview in Gugulethu, confirmed the atmosphere of mistrust: "Being a lesbian and going to the police-ach!" And another voice intervened: "It's useless to go to the police and report. The police laugh at you and say you are a girl, or the police can take you to the jail, they don't care about lesbians."[473]

3. State responsibilities: community education

Others note that the state has done little to combat community prejudices against lesbian, gay, bisexual, and transgender people. Asked what would make her life easier, "Maria" said: "If people accept us: community education."[474]  Member of Parliament Mike Waters says, "The government's role should be to educate people.  People see gays as promiscuous and deviant, still.  The minister of education has shown courage in introducing, against a Christian backlash, sex education in schools, including some information on sexual orientation.  But there is not much in the way of diversity education or rights education."

One student in Durban finds existing school programs ineffectual.  "Schools should have a discussion about gay issues as part of the curriculum.  Not all kids know about it.  Some don't know the word homosexual.  When kids come out then they would have some support."[475] Tumi told us: "The same as HIV/AIDS education has been integrated into the school curriculum, so should queer issues."[476]

Palesa said the government should create public "campaigns to talk about homosexuality.  So that people can see we are not evil, we are people as normal as they are…. We are a part of South Africa, young people are growing up as lesbians and there is not so much information for them. They don't talk about safer sex for them, only for straight people…. The constitution protects us but it is not implemented.  They say 'rights, rights' but we are not protected.  There are still lesbians being raped, still gay men being bashed. The government should stop talking and let us see what they can do."[477]

Like other South African NGOs, lesbian, gay, bisexual, and transgender organizations have limited resources and capacity to reach out even to their own constituencies (particularly when they consist of closeted individuals), much less to campaign for understanding in a broader community.  Like other South African NGOS, such groups often resenthaving to give support and information to their community, and struggle to change social patterns and prejudice, with little or no state support. Adie in Durban says, "To help lesbian and gay folks, the government should run a consciousness-raising campaign, because 90 percent of the population still don't know what gays and lesbians are…. Why must we [activists and NGOs] take on that burden, to conscientize the world?  Why isn't the government taking that on?"[478]

Nonhlahla Mkhize, of the Durban Gay and Lesbian Community Health Centre, notes that the state provides almost no resources on homosexuality. "The city library is under-resourced with gay and lesbian materials.  There's an inventory of library resources on gay and lesbian issues but many of them are homophobic to begin with, for example psychiatric texts that say gay or lesbian people are abnormal or wrong.  We have developed a list for positive books and sent it to the Unicity Council, but nothing much has come from it.  Instead we have had to get books donated and set up our own library."[479]  Yet she also observes that the NGO center, unlike neutral state institutions, is of limited usefulness to the closeted individuals who may need it most:

Lesbians are referred [to us] by word of mouth; most people call saying that they found out about us from this person or that person…. Coming to the center, just to walk in on their own is an important form of coming out….. As much as we are proud to have a gay and lesbian center in the city, I am not sure it is helping people to feel comfortable to come there.  To most folks it is a gay center and everyone who goes there must be gay.[480]

 

The Durban Gay and Lesbian Community Health Centre distributes condoms within clubs and communities, runs workshops and seminars, and educates communities on gay and HIV/AIDS issues.  They receive no local or central government funding. The center's chief AIDS worker, Tsembani, says:

As HIV coordinator, I visit hospitals and tell them about gay issues, how gay people are different.  I go to private hospitals and public clinics….. The trainings involve the human rights issues, as well, that each individual is protected by the constitution.  We have the right to equality, privacy, and to accessing every resource in South Africa for everyone….[481]

One obvious question is why the state does not furnish such trainings and information itself for public clinics.  In Soweto, Thulani Mhlongo notes that "We have a national medical minimum standard [for health care workers] so that whenever you are trained you can work anywhere in the country.  It should include a package of life skills, on sexuality, violence, abuse, women's and sexual rights, women abuse."[482] And Tsembani says,

The constitution supports and protects but there's no action from the government with respect to gay communities.  There should be services initiated by the government for gay people.  Gay people should do things for themselves, but government should spread the word also…. If it comes from the government, people will be able to understand LGBT issues more easily.   

And government should provide information specific to the gay community about AIDS, not just to the straight community.  The center has fliers for queer communities, but they go out to fewer people than they should.  As a government of national unity, this government should be producing that kind of information for all people.

Vasu Reddy, a founder of the Durban Gay and Lesbian Community Health Centre, says:

I believe the government should be supporting the center, but the government isn't…. The center asked for a meeting with the mayor to see what kind of assistance the city could give us, given that it is providing assistance to the city as a whole.  There have been no follow-ups from the mayor's office at all.

I don't think it is the role of government to be the redeeming grace of the gay and lesbian community.  But government needs to play a role…. A major challenge for the government is to facilitate funding and expertise, and facilitate networking among certain sectors of service providers and the lesbian and gay community.[483]

C. Gender Identity and Expression

One young woman in Mamelodi told Human Rights Watch, "I am a lesbian, a man.  Becaue of how I dress, what I like, I am closer to being a man than a woman.  People often ask am I a man or a woman. I say I am a lesbian."[484]  And another told us,  "Most people look at me and think I am a lesbian, maybe because of how I dress, that I dress like guys, or because of how I talk.  I get called lesbian or tomboy a lot."[485]

Gender norms are as powerful in South Africa as they are elsewhere in the region, and the abuse directed at people who transgress against them can be as severe.  This makes it particularly important to examine what protections South Africa accords transgender people, or gender identity and expression.

Although the Equality Clause mentions only sexual orientation, sex, and gender-not "gender identity" or "gender expression"-the Constitutional Court affirmed, even if only cursorily, that "transsexuals" were implicit in those provisions in its historic 1998 decision overturning sodomy laws:

The concept "sexual orientation" as used in s 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. [486]

"It has not filtered down," says Wendy Isaack, who heads the Gay and Lesbian Legal Advice Centre at the Equality Project. "The transgender people who seek legal advice from us are some of the worst off."  She told our researcher in 2001 how a male-to-female transgender client who is serving an eighteen-month prison sentence is kept in solitary confinement for twenty-three hours a day.  "Because he is pre-operative he is held in the men's section of the prison; but then they say they have to isolate him so that he will not be raped."[487]   Other clients have been harassed and victimized in public places: "for instance, they're beaten up or arrested because they go to the wrong bathroom in a shopping mall."[488]

South Africa is the only country in sub-Saharan Africa where hospitals offer sex reassignment surgery (SRS).[489] However, the country no longer allows people who have undergone SRS to change their legal identity papers to reflect their new, post-operative gender-an astonishing step backwards, flouting the Constitutional Court's promises of protection.  For almost three decades the Births, Marriages and Deaths Registration Act, passed in 1963, allowed altering the birth register of any person who had "undergone a change of sex." In 1992, however, the act was replaced by a new Births and Deaths Registration Act (51/1992), which reversed that position.  Section 33(3) says that any person

who was in the process of undergoing a change of sex before the commencement of the Act, may on completion of the said process apply … for the alteration of the sex description in his birth register.

People who began hormone therapy or some other aspect of the SRS process after 1992 can no longer get their papers changed.  "It is an absurd legal situation," says Evert Knoesen of the Equality Project.  "Some can normalize their legal status if they sneaked in under the deadline-meaning that now, nine years later, hardly anyone remains who qualifies.   But no one who begins the process today has the possibility."[490]  Transgender people whose legal identity no longer corresponds to their appearance are left in a social as well as legal limbo.  The disparity may deprive them of their rights to access basic services, rent housing, or obtain employment, and may subject them to steady harassment, including police interference, in their daily lives.[491]

The inequity meshes with other discriminatory provisions in South Africa law.  For instance, it means that female-to-male transgender people lack adequate protections against rape-since they are still legally male, and under South Africa's confused Sexual Offences Act, non-consensual sex between two men is punishable only as the lesser crime of "indecent assault."[492] (The South African Law Commission's proposed revisions to the Sexual Offences Act, which may become law in 2003, would, however, change this situation and describe such acts as rape.)

In 1996, the issue of transgender identity, and identity papers, was addressed by the South African Law Commission. In a report on the "Legal Consequences of Sexual Realignment and Related Matters," the commission recommended legislation to allow a change of papers after SRS-although it said that such a measure was not constitutionally required.[493]  The report generated brief controversy and was then forgotten.  The Commission on Gender Equality has also been asked to address the issue; it stated vaguely, four years ago, that "A holistic strategy is now being devised to deal with this complaint."[494]  No such strategy has been forthcoming.  Knoesen says, "The question has disappeared into the mists of indifference."[495]

D.  Knowing Rights, Accessing Redress

Adie, a white lesbian activist in Durban, felt empowered when she went to a police station to report an assault: "Here we have recourse…. I don't so much see the police as a resource, but I know my rights in the country."[496]

Knowing one's rights is crucial to enjoying them, particularly as South Africa embarks on a project of equality which still feels almost experimental to many.  People told us again and again of needing to spell out to officials-police, health care workers, and others-what the constitution mandated them to provide.  Having the strength to threaten legal action sometimes is the only way to get attention to one's everyday nights.

Yet not everyone has Adie's confidence, or knowledge. A 2000 survey of South Africans by the independent Community Agency for Social Enquiry (CASE) found that 36 percent of respondents had never heard of the Bill of Rights;  another 29 percent could not say what its purpose was.  Asked how they would make contact with human rights institutions if needed, 59 percent of those surveyed "said they would not know where to go."[497]

In such a situation, people's capacity to claim their rights is obviously at risk.  Since 1996, the government has begun to conduct campaigns of rights education.  But it has not targeted lesbian, gay, bisexual, or transgender people. The state produces no campaigns or materials to inform communities about constitutional protections for sexual orientation.

Wendy Isaack of the Equality Project says,  "It's all rather like they give us these rights for Christmas, they plop them down in front of you, and then the government feels satisfied and moves on to other things.  But you don't give someone a gift without an instruction manual.  I'm sorry, where's the instruction manual?"[498]

As Beverly Ditsie sees it, "The responsibility for informing people of their rights should have been a function of the government arm that deals with education. … [At the time the constitution was passed], there was no government office given the task to raise people's awareness. … So it became that their responsibility was to educate and advertise about the constitution with fliers-and that is a drop in the ocean."[499]  Nonhlahla Mkhize, of the Durban Gay and Lesbian Community Health Centre, said that, as a result of the government's failure to better inform gay and lesbian people of their rights and how to access them,

People are aware that there is a constitution but don't know how to apply it, or how one can use the constitution for protection.  They ask [when they come into the center] "Who do you go to to apply the law?  Do you have to pay?"  One client said to me, "I am being verbally abused at home, but what am I supposed to do?  Say, 'I have my rights'?  That won't do anything."  And that's folks' dilemma-they know there is a body of laws but they don't have any idea how to apply them.  They need to know what to do in the moment when they are being abused.[500]

One activist, who declined to be named, also is skeptical of the work of some NGOs-including many lesbian, gay, bisexual, and transgender groups and AIDS organizations-in promoting awareness of rights.  These comments perhaps reflect the divide between the many NGOs devoted to service provision, and the fewer ones devoted to advocacy.  They suggest that many NGOs are so consumed with meeting basic needs that they do not inform themselves about how to turn those needs into rights-based claims:

If you talk to one of the people who works with these groups, and you say, what are the legal developments in LGBT rights since 1994, they just don't know…. If you say, look at the the political atmosphere of the country and how lesbian and gay rights have fitted in, it's difficult for them to grasp, because they don't work with, or within, the political atmosphere of the country.[501]

One NGO which does help lesbian, gay, bisexual, and transgender people access their rights is the Equality Project.  Wendy Isaack, the Gay and Lesbian Legal Advice Center coordinator at the organization's offices in Johannesburg, offers legal advice to people who cannot otherwise afford it, as well as referrals for those who can afford to pay.  The center deals with issues such as same-sex domestic violence and people seeking protection orders; people who have been raped or abused; people requesting asylum based on sexual orientation; sex workers; and people denied parenting or partnership rights, including custody, shared benefits, or pensions.  Isaack  takes in 100 to 150 cases per year; she believes this represents "the tip of the iceberg." "Most people who face these kinds of problems," she says, "don't even know of us."

Isaack reveals the limits of what NGOs can do to help people ¾ whatever their sexual orientation ¾ access their constitutional rights.  The cheapest rate to hire a private lawyer, Isaack told us in 2001, is R450 per hour (almost U.S.$50 at the time)-a sum vastly beyond the means of most people in townships.  The economic disparity places a huge strain on the resources of the few NGOs providing pro bono assistance.  Only three attorneys are regularly willing to work for free for the Equality Project; the law clinic at the University of the Witwatersrand provides some law students; but effectively, Isaack says, "this is a one-woman show, meaning me."[502]

Beyond the lack of individual or NGO resources, lesbian, gay, bisexual, and transgender people face special problems in getting informed legal help, Isaack says.  "Many lawyers don't know the growing body of jurisprudence on sexual orientation."[503] No law school teaches a class on sexual orientation law; the standard law-school text on the Bill of Rights devotes only four pages out of nearly seven hundred to sexual orientation.[504]

The Equality Project developed a two hundred-page guide to sexual orientation and the law, explaining legal developments since 1994, in simple language, called "Outlawed."  Its publication was delayed for three years, for lack of funds.[505]

E.  Employment

Unemployment is a harsh reality in South Africa; over one third of the population is jobless.  Different communities are differently affected.  According to data from the most recent census in 1996, people of African descent made up 90 percent of the unemployed, coloured South Africans 6 percent, and whites 2 percent.[506]  Yet according to many we interviewed, unemployment, like so many of the social and economic difficulties in South Africa, also impacted lesbian, gay, bisexual, and transgender people in ways not experienced by the population at large. Many people we spoke to were unemployed-and many had given up hope of employment. In an already unfriendly job market, LGBT people have an extra strike against them, especially when they bear the distinguishing marks of defying gender and cultural norms. 

The consequences of lack of access to employment are great for lesbian, gay, bisexual, and transgender people.  As Patty, an African lesbian in Mamelodi, told us, "I completed my matric [high school degree] in 1996, and have been looking for a job, any job.  Most people look at me and think I am a lesbian, maybe because of how I dress, [they think] that I dress like guys, or because of how I talk…. Money is a big factor-I have no job."[507]

We spoke with many people who take steps to conceal their sexuality rather than face possible discrimination. Des'ree, an African lesbian living in Boweni Park, said, "My feeling is that my lesbianism is something private and that I share with people who matter to me.  My boss and the people I worked with didn't need to know, because I am not hanging out with them."[508] Palesa, an African lesbian living in Soweto told us, "It is very difficult for a lesbian to get a job if we go to get a job as ourselves.  When [potential employers] see that [I] am like this [lesbian], they become negative."[509]  In Palesa's efforts to find work, she has been asked directly about her sexuality,

The last time I went to an interview, the interviewer asked me if I had a boyfriend.  I said no.  Then he asked me if I had a girlfriend and I just smiled.  He said he would call me back and never did.  I don't know if it is legal to ask if you have a boy or girlfriend, but it is not a question I think I should be asked because it has nothing to do with why [I] am there.  Before he asked about my partner, the person who interviewed me was impressed that I could answer all of the interview questions.   So I don't know why I did not get that job.[510]

Finding work within the community where one is known can be especially difficult.  As Charmaine, an African lesbian, said, "I stay in Gugulethu, and if I apply for a job to work here and the community knows that I am a lesbian they will think that I will teach the children to be a lesbian.  They will not give me the job and say something like, 'You didn't fit the qualifications or the criteria' or someone with more experience got the job.  They won't hire you because they think you will teach others or change others into being lesbians."[511]

Refusal to conform to gender norms can mark one as different, and make one unemployable. Funeka Soldaat, a lesbian working with the Triangle Project, observed, "it is difficult when [a lesbian] goes to look for a job and there are these stupid dress codes.  If you are a girl, you must wear a skirt."[512]

Pat, a coloured lesbian, told us how gender conformity affected a former girlfriend's attempts to find work.  The woman's appearance-she is commonly perceived as a man-placed her outside gender codes prescribing what women and men should look like and the work they could do.  When she applied for jobs in traditionally male fields, "Employers would hire her [thinking she was] a man." Yet, despite the fact that she was capable of doing the work, "as soon as they found out she had a pair of breasts, they would say, 'No, we want a man, we thought you were a man.'"[513] 

Others reported that the fear of discrimination discouraged them from job-hunting. Thabo told us, "I don't have a job and never tried to get one.  It's very hard to be a lesbian.  If I go to get a job in a retail store, I won't try to be femme and put on a skirt just to get the job.… [T]hey would just look at me and not give me the job.  But I won't put on a skirt.  It's the hands that work, not the skirt."[514] 

The environment of discrimination is itself experienced differentially; and some interviewees stated they have never faced unequal treatment at work. Class, race, and the environment of employment affect the likelihood.  Carol Bower, a white lesbian who is the executive Director of RAPCAN (Resources Aimed at Preventing Child Abuse and Neglect), attributed her good fortune to the fact that, as an activist for women's, children's, and gay and lesbian rights, she has often worked in NGOs with other lesbians.  Adie, a white lesbian who has been a long-term volunteer with the Pretoria-based lesbian, gay, bisexual, and transgender organization OUT, says: "I work in the public sector and there I think I will not be denied promotions because I am a lesbian."  At the same time, she observes, "I don't know what kinds of resources are available to me if I am discriminated against on the job."[515]

Virtually all of the people we interviewed indicated that difficulties in finding employment were compounded by-sometimes, began with-discrimination and homophobia at school and in the homes they grew up in.  As Funeka of the Triangle Project put it, "because of the struggles we face to be who we are when growing up, especially as women and lesbians, most of us will never go to tertiary school or to have some skills that will make it easy for us to be employed.  For some of us it was difficult to just reach matric."  By the same token, "if you have to leave home because of the environment [before finishing school], you won't have the skills to find a job." [516]

Few legal cases have been brought to test both constitutional protections, and newly enacted legislative safeguards, for sexual orientation in the workplace.  Evert Knoesen of the Equality Project says,  "Fair labor practice is a constitutional prerogative.  But the jurisprudence on sexual orientation so far has shown a big gap on labor practice.  We need to work to fill it."[517]

F.  Parenting

South African law has seen significant changes in adoption rights in recent years.  Decisions by the Department of Child Welfare in the 1990s extended the right to adopt to individual homosexuals ¾ while denying same-sex couples the right to adopt jointly.[518]  As Evert Knoesen explained to Human Rights Watch in 2001, "This means that the child [in a lesbian or gay couple's home] has no claims for maintenance from the second parent." [519] 

This has, however, changed.  A significant case was brought by Judge Anna-Marie de Vos of the Pretoria High Court and her partner of eleven years, Suzanne du Toit.  De Vos had adopted two children six years before, and raised them jointly with du Toit.  Now de Vos questioned what would happen to the children in the event of her death: the law gave her life partner no rights over them.[520] In late 2001, a High Court declared unconstitutional the sections of the Child Care Act of 1983, and the Guardianship Act of 1992, which restricted joint adoptions to legally married couples.  Knoesen told us that  "adoption authorities fully support the application for the law to be changed so that the two women may jointly adopt the children."[521]  In September 2002, the Constitutional Court confirmed the ruling.[522]

G.  Partnership

Current South African law gives people no legal right to marry partners of the same sex.  Although a succession of court cases has extended to "permanent same-sex life partnerships" some of the economic rights of married heterosexual partners, the process has been piecemeal. The Equality Project estimates, based on a study by the University of Witwatersrand Law School, that, to give gay and lesbian couples the same rights as heterosexual married couples through litigation, between eighty and one hundred  separate laws would have to be challenged in court.[523] 

No overall legal definition of same-sex partnership has emerged.  Evert Knoesen notes that court rulings have required, as one definition of a "permanent partnership," the existence of "shared obligations" between the partners. Knoesen says,

It is modelled on Canadian and European law, and very much drawn from [what in South African terms are] upper-class,  middle-class, white issues.  They will thus ask if you own a home together, or have a bank account.  But many poor couples might not have either one.  How can you prove you share obligations if you don't have any resources to do it with?[524]

No parliamentary definition of marriage or partnership has superseded the gradual, often haphazard, allocation of rights to same-sex couples in successive judicial decisions (or has clarified the ambiguous status of unmarried heterosexual couples).  As a result, gay and lesbian couples can still be excluded from many automatic benefits guaranteed to heterosexual married couples, including property inheritance rights; the right to receive and dispose of a partner's body in the event of death; recognition as a family and receipt of all benefits accorded; the ability to make decisions regarding medical care should a partner become incapacitated, including the execution of living wills; and receipt of pension, health, and death benefits.   Partnership rights in the workplace-access to health plans and other benefits-are particularly significant to the poor in a situation of mass unemployment, where they can help one working partner support a family. 

The consequences of same-sex couples' exclusion from legal recognition of their unions are manifold.  Some are also true for unmarried heterosexual couples, although the option of marriage always exists as a remedy.  There are no ready remedies available for homosexual couples.

Tumi, an African lesbian teacher living in Springs, told us her story, which underscores how powerless couples can be without the clear protection of the law, as well as their dependence on the legally recognized "family" to acknowledge their relationship.  "I lost my lover in June 2000-she committed suicide in our home.  I came home early from work and found her hanging in our house.  It was very hard.  I was very upset."[525]  Tumi called the police, who came to their home and took away her lover's body so that they could determine the exact cause of death.  Tumi contacted her lover's family, with whom she had a strained relationship because they disapproved of her and of her lover's sexual orientation.  A few days later, the family "just came in and took all of the furniture, all of my lover's things.  They treated me very harshly, blamed me for what happened.  I wasn't even able to go to the service for her.  I was also unable to see the post-mortem report.  The medical examiner said he could only give it to family.  She and I had been together for many years."[526] 

Carol Bower, who had been with her partner for over ten years, found that the larger society was confused about what rights were accorded her relationship.  Each woman had had a child before the relationship began, and they had raised the children essentially as brother and sister.  However, when Carol's daughter was in the hospital, "a nurse told us that my partner and her son couldn't visit my daughter because they weren't family.  I told that nurse that they most definitely could visit, and that as a lesbian couple we were protected by the constitution.  The nurse did not know what the right answer was, whether what I said was true or not, and so she let them in.  There is still lots of confusion about what is legal and what is not, and we were lucky that time."[527] 

Unfortunately, many same-sex couples and lesbian, gay, bisexual, or transgender parents also do not understand what rights they have, and are unable to advocate for themselves effectively.  The word of the law sometimes offers a confusing and equivocal response to social discrimination.

For Adie and Louanna, a white lesbian couple from Pretoria who have lived together for two years, conflicting responses from "people who should know the right answers" means that they must be far more persistent and diligent than heterosexual couples.[528] After living together for a year, they read about a decision in a court case that opened the way for same-sex couples, among others, to share medical aid benefits.  The couple decided to put Louanna on Adie's medical aid.  Yet officials were unable to tell them what requirements their application should meet. Louanna says:

I called [the medical aid] and asked how long we needed to live together before trying it.  They said they didn't know.  When Adie called, they told her that there was no time limit.  . . .  So we go to the police station and write an affidavit under oath saying, "This is my partner and I've been with her for one year continuously and we share a bond, house, etc.," and submitted it to the Department of Health along with an application … They wrote back and said "Sorry, you have to be together for two years."[529]

The Equality Project continues to mount legal challenges to exclusion, and-as listed above-to score successes.  The project also assists couples in preparing partnership affidavits, as a basis for claiming benefits and as a hedge against additional, economic catastrophe if illness or death should strike.  Wendy Isaack of the organization says that "around five people a week" request such help. But she confirms that legal triumphs have not yet been understood, much less implemented, throughout the country.  "You may have the court cases, but the denials still happen.  If a private company refuses to pay out a pension to a surviving partner, for instance, you can go to the Pension Fund Adjudicator.  There is a precedent there now.  But how many people know about it?  And it will take time."[530]

Most advocates believe that a reform of South Africa's laws on marriage is urgently needed.  The issue has found its way to the South African Law Commission, which has examined marriage in a succession of discrete proposals.  First the Law Commission reviewed the status of African customary marriages in a major research project, recommending that both monogamous and polygynous customary marriages be recognized and registered, with guarantees of equal status and capacity for women.[531]  In 1998, the Recognition of Customary Marriages Act made most of those recommendations law.  Further recommendations surrounding the recognition of Islamic marriages have yet to be enacted.[532]

Evert  Knoesen explains that, in the mid-1990s,

given the confused state of marriage law, the Law Commission realized  . . . that it was not possible to do it in one go.  They split the question of reforming marriage law into parts … [One part] included traditional and cultural [Hindu or Muslim] marriages, as well as the question of same-sex relationships and establishing, possibly, some form of non-marriage domestic partnership recognition for heterosexuals as well.    But this was rather too much too fast.  So they split the domestic-partnership and same-sex issues off, and looked only at customary and religious marriages.[533]

Now the Law Commission is left to tackle the thicket of questions around same-sex relationships. A 2001 Issue Paper on "Domestic Partnerships" indicates the direction in which it is moving.  The paper suggests that same-sex relationships should be recognized in the course of giving rights to other "non-marriage relationships," since "large numbers of South Africans live with their intimate partners without marrying."[534] It notes that "domestic partnerships have come to be perceived in many cases as functionally similar to marriage." It cites other countries which have recognized domestic partnerships, some for same-sex and some for heterosexual couples.  What it does not note, however, is that "domestic partner" status in those states endows a different, more restricted set of rights than does heterosexual marriage.[535]

Indeed, if the Law Commission models its ultimate proposal  after European "domestic partnership" laws, which limit (for example) the adoption rights of unmarried partners, it would offer considerably less than the rights already won through litigation under South Africa's constitution.[536]  Knoesen believes that

The Law Commission is clearly moving away from proposing a law which would give gays and lesbians full marriage rights. They will propose some lesser status of "domestic partnership."  And indeed they appear to be moving away from a status of domestic partnership which would require state registration.  In effect, they seem to want a form of common-law marriage-something which has not really existed under South African law, and does not really correspond to what the existing jurisprudence on same-sex partnerships requires.

The commission, Knoesen says, "is unlikely to propose to Parliament even as much as the courts have already, in some specific spheres, offered.  But going through the courts to get those rights fully extended could take years."[537]

A recent decision confirms this pessimism.  A High Court judge in Pretoria in October 2002 dismissed an application by a lesbian couple asking that their nine-year union be recognized as a marriage.  Despite an amicus curiae brief from the Equality Project grounding the application in the Equality Clause, the judge flatly refused to consider constitutional issues, noting only that the existing Marriage Act refers solely to heterosexual unions.[538]

H. State Silence

Activists again and again stressed how many responsibilities to serve lesbian, gay, bisexual, and transgender people the South African government still does not meet-and how many positive opportunities it neglects. 

Vasu Reddy, co-founder of the Durban Gay and Lesbian Community Health Project, notes, "The South African government should be vigilant and come out vigorously and clearly and unequivocally against homophobia."[539]  Yet state silence thwarts the spirit of constitutional protection; limits individuals' ability to access rights; forces overextended NGOs to take up burdens the state should shoulder; and keeps the larger public ignorant that violations of human rights are wrong and will not be tolerated. Despite positive developments in South African law, officials have failed to speak out forcefully in support of lesbian and gay rights, and the government has not devoted resources to community education. There is also a dearth of attentive oversight bodies to monitor whether and how LGBT people's rights are being upheld.

Some we spoke to urged the state to pass existing policy through the fine-toothed comb of the Equality Clause-examining it comprehensively and closely to eliminate vestigial, but still dangerous, discriminatory provisions.  Yet beyond that, most felt the government should be acting on its positive mandate to promote equality.  That mandate is expressed in the Equality Act of 2000, which, in section 25.1, requires the state inter alia  to:

· Develop awareness of fundamental rights in order to promote a climate of understanding, mutual respect, and equality;

· Take measures to develop and implement programmes in order to promote equality …

And, "where necessary or appropriate," it mandates the state to:

· Develop action plans to address any unfair discrimination, hate speech, or harassment;

· Develop codes of practice … in order to promote equality, and develop guidelines, including codes in respect of reasonable accommodation;

· Provide assistance, advice and training on issues of equality;

· Conduct information campaigns to popularise this Act.[540]

In this light, Bernedette Muthien called on the government not to parcel out areas of concern into separate pigeonholes, but to understand their intersections: "If they have poverty elimination programs, then the race, sexuality, gender stuff should be a key part of it."[541]

Contrastingly, Vainola Makan called for specific instruments, and allocations, on sexual-orientation issues: "Government needs to put their money where their mouth is, given the constitution.  They have machineries for women, for the disabled, for children, and on this one I think they must give some money."[542]

Many people pointed out that the national government has no oversight body specifically mandated to ensure that constitutional protections on sexual orientation are enforced.  The constitution creates a set of "Chapter 9" bodies to observe how equality rights in that section of the document are upheld.  These include a general Human Rights Commission (HRC), and a Commission on Gender Equality (CGE).  They have power to monitor, investigate, educate, and advise on specific cases as well as broad patterns of inequality, though they cannot enforce calls for redress.

Carrie Shelver, executive director of the Equality Project, told Human Rights Watch and IGLHRC in 2001 that "No consistent policy on sexual orientation has been issued by the Human Rights Commission or the Gender Equality Commission…. We have had good relations with the Human Rights Commission, but commissioners in the Commission on Gender Equality differ about their position on sexual orientation."[543]

Evert Knoesen adds that "The CGE barely can be said to have a grasp of the ramifications of sexual orientation issues.  And there is the issue of resourcing: they have only a fraction of the budget of the Human Rights Commission."  Meanwhile, he contends, the HRC has been hampered by public opposition: "They are looking at long-term problems in relation to society. They take a progressive stand on issues where society already has strong sentiments-for instance, refugees and illegal immigrants.  The public doesn't see them positively.  And this means they haven't so much clout left to expend on an issue like homosexuality."

In addition, staffing at the HRC has not been organized thematically, making it difficult to determine where complaints relating to sexual orientation should be taken or how they should be handled.  The commission, Knoesen says, is "not very well set up in terms of organizational memory and retaining information: there is nothing in place that will see a body of knowledge on any particular issue being retained.  We [at the Equality Project] have far more information on sexual-orientation violations, and law, than they do."[544]

Others urge creating special mechanisms in the executive or legislature, such as exist for other groups protected under the constitution-for example, the Office for the Status of Women, or parliamentary committees to monitor the implementation of protections for children and the disabled. Bernedette Muthien believes the government's role is clear: "There must be a sexualities officer in the Office of the President. That would make a huge difference; otherwise the clause will be just lip service.  In practice, there's a Status of Women Office, a Disabilities Office, etc. A sexualities officer would really show government's commitment to eradicating violence against queers, violence which is personal, structural and cultural, and endemic in townships and rural areas."[545]  And Carol Bower, a white lesbian activist who heads RAPCAN, feels that "there must be a way to hold the government more accountable, to challenge the government to do things obligated by the constitution. For example, there is a joint monitoring committee in Parliament for women.  Why isn't there one for gay and lesbian issues?"[546]

Amid the state silence, some lower government officials have felt free to flirt with homophobia.   In an April 2001 meeting of the Durban Investment Promotion Agency, the city's mayor, Obed Mlaba, said: "We should stop comparing ourselves to cities like Cape Town.  In fact, Cape Town can stay with its moffies and its gays."[547] 

Amid wide condemnation of his remarks, the mayor eventually issued a formal apology through a spokesperson, assuring the public that "the rights of all individuals, regardless of race, religion or sexual preference, are protected by our new Constitution.  He [the Mayor] is very proud of the Constitution and fully supports it."[548] 

Vasu Reddy of the Durban Gay and Lesbian Community Health Centre was grateful for the mayor's apology ¾ but considered it undercut by his office's unresponsiveness to outreach by the group, the only gay and lesbian service organization in KwaZulu-Natal province.  The center had asked the mayor to meet and discuss joint work on fighting stigma within the city. Reddy says,

We want to explore how the Unicity [Durban] could form a partnership with us, since our center is providing a service to the city as a whole, not just gay and lesbian people.  The deputy mayor came to the center's opening in May and again apologized for [the] mayor's comments.  We asked again for a meeting with the mayor to see what kind of assistance the city could give to the center, again given that it is providing assistance to the city as a whole.  There has been no follow-up from the mayor's office at all.[549] 

Other politicians have also engaged in homophobic rhetoric.  In 1999, Graham McIntosh of the opposition Democratic Party attacked Judge Edwin Cameron, a prominent public figure living with HIV/AIDS, saying that Cameron's serostatus "is a logical consequence of his self-proclaimed, public and enthusiastic support for and practice of a homosexual orientation."[550]

Peter Marais, who has served as mayor of Cape Town and premier of Western Cape Province, has repeatedly criticized constitutional protections for gay and lesbian rights.  In 2002, Marais accused a "gay lobby" within the Democratic Alliance party[551] of trying to destroy him with sexual-harassment allegations: "They want to attack my image as a Christian by attaching sleaze to me so that this will make my argument against homosexuals less credible."[552]  The ANC (a coalition partner of Marais' New National Party in the province) distanced itself from his remarks-but did so by denying their political dimension or effects, calling them "personal."[553]

The state's silence also creates interstices in which individuals can be subjected to vilification.  Sheryl Ozinsky is the openly lesbian manager of Cape Town Tourism (CTT).  CTT promotes Cape Town as a tourist destination internationally, and receives 25 percent of its funding from the city.  In early 2001, Ozinsky came under fire from religious groups when she announced CTT's intention to pursue the gay niche market and to promote Cape Town as a gay-friendly city.  According to Ozinsky, her pursuit of so-called pink tourism rose from practical concerns: "It is a lucrative niche market for us.  Gay tourists travel more than other tourists, four and a half times per year versus one time per year for heterosexuals.  They spend a lot more money, add flavor to a destination.  We have been pursuing the pink tourism niche market and as a result Cape Town is probably the sixth most popular gay destination in the world currently."[554] 

From approximately February to May of 2001, Ozinsky received thousands of letters at her home and office, many threatening harm. Others went to the press: "I have a file … of anti-gay letters to the press from anti-gay Muslim and Christian groups who were attacking me personally for being gay and for using my position to put forth my own agenda of bringing more gays to Cape Town." She says,  "I took my case to the Human Rights Commission.  I am waiting to hear back, but it's been months.  The case is based on the fact that I am being attacked personally, as a gay person.  If a heterosexual person were in this position, they never would have been attacked like this, or accused of taking taxpayer money to promote family tourism into the city.  But because I am gay I am accused of promoting my own agendas."[555] 

Ozinsky says:

We were quite surprised at this outburst because if you replace the word black or Jew or Hindu for the word gay, then it becomes another matter entirely and what right does anybody have to voice such negative opinion about gay people when they would never do that about blacks or Jews?  It would be unheard of.  There would not even be a platform in the daily newspaper through which you could expose such unconstitutional values.  It's almost hate speech…. While it is important to talk about issues and get them out, I think there is a fine line between talking openly about issues and speech that incites others and in my opinion this did.[556]

Public officials were largely silent.  The board of CTT, which includes three representatives from the City of Cape Town government, had endorsed Ozinsky's support of gay tourism,  but neither she nor CTT received official support from any government sector.  "The ANC has crafted this constitution, but throughout the debate the ANC was utterly silent.  I had an off-the-record conversation with an ANC politician and was told it is a very sensitive issue for the ANC and that they couldn't come out and openly support me."[557]  For Ozinsky, the ramifications of this isolation extended far beyond her own situation. "It scared me hugely, because if this is a government that prides itself on human rights and couldn't come out to support me openly because they were worried about the Christian or Muslim vote, then my God, we are in for a tough ride as South Africans.  And some of the other political parties were absolutely silent, including the minister of tourism and everybody involved in tourism."[558]

On an international stage as well, elected officials from South Africa have usually remained silent about lesbian, gay, bisexual, and transgender concerns.  There have been exceptions, particularly the support given by South African diplomats to sexual-orientation issues at a number of international conferences.[559] However, South Africa has not criticized homophobic comments by the leaders of Namibia, Zimbabwe, or other states; nor has it supported activists who do so. 

South Africa has particularly shown itself reluctant to offend other members of the Southern African Development Community (SADC).  SADC has progressive positions on gender; for example, a 1997 policy statement committed the organization to eradicating "norms, religious beliefs, practices and stereotypes which legitimize and exacerbate the persistence and tolerance of violence against women."[560]

Yet South Africa has not vocally opposed policies in other SADC countries which encourage those stereotypes to survive.  Some of the depth of this reluctance can be seen in the language of asylum cases in South Africa.  Although South Africa's immigration policy in principle recognizes the right to asylum based on sexual orientation-and increasingly emigrants from repressive SADC states apply-few if any such claims have been granted.  Wendy Isaack says, "I worked on the case of a white lesbian seeking asylum from Zimbabwe.  The answer from the Immigration Board was, 'It is not possible a white woman would experience difficulties there, and anyhow, Zimbabwe is a SADC country.'"[561]  Francis Chisambisha, of Zambia, sought asylum in South Africa from persecution in Zambia.  His well-documented claim was rejected at the first instance; the Immigration Board observed in disbelief that Zambia was a democracy and a SADC member.[562]

Vasu Reddy says, "Government should speak out within the broader context of the 'un-African' issue, on which the South African government has been particularly silent…. If we are all supposedly subscribing to human rights, we cannot be selective about those rights.  We cannot, to use a Thabo Mbeki phrase, pursue a 'silent diplomacy' on issues of homosexuality and its un-Africanness as articulated by Nujoma and Mugabe and the rest."[563]    Reddy adds,

If it [condemnation of homophobic speech and actions] is articulated by a leader or leaders, then it immediately sends messages and codes which can be translated into action by the populace…. The effect would echo throughout the region and be a part of nation-building and rebuilding the continent, which is such an integral part of Mbeki's presidency-this issue of recovering ourselves as Africans.  Part of that mission has to be … taking a stand on homophobia .… Despite our progressive agenda in terms of the constitution, we need to be verbal and articulate about upholding those tenets.[564]

According to Evert Knoesen, "The government has a clear responsibility in the region around gay and lesbian issues, but is choosing to be silent, to make no public statement concerning other governments' human rights violations."[565]

I.  Realizing Rights

Nearly everyone we interviewed who identified as gay, lesbian, bisexual, or transgender  in South Africa was aware, and proud, of the constitutional protection for sexual orientation.  But most who had heard of it had not been helped by it.  For the vast majority of people we interviewed, particularly young African lesbians and gay men living in cities, townships, and rural areas, the Equality Clause had not changed the degree or depth of the discrimination and harassment they experienced.

The Equality Clause remains, for the vast majority of South Africans, largely unfelt.  It is a distant rumor, a source of hope as well as pride, but unfulfilled.

We asked each of the people we interviewed what they thought would make a difference: how could the government make the clause work for them?

What follows is a reflection on how to make a right realizable. 

Governments cannot simply rest content with putting rights on paper.  Nor can they confidently congratulate themselves on the bare facts of legislative or jurisprudential progress.  To be sure, much has been done in the courts and Parliament in South Africa.  Much remains to be done, and should be.  Laws need to be passed, or judicial action taken, to remove the last traces of discriminatory provisions on sexual conduct, and to define marriage in an inclusive way.  But even when the law books have been purged of prejudice and made consistent with the language of the Equality Clause, more will still need to be done before the words describe realities for South Africa's people. 

Governments need to look at each form of inequality and injustice with an eye to at least four matters.  They must understand its particularity;they must also understand its intersections with other forms.  They must identify how redress can be made readily accessible.  And they must promote rights  and the knowledge of rights, and in the process-as South African law commands-actively promote equality.

Governments must analyze the particularity of the inequality suffered by, or discrimination directed at, a community, status, or identity.  Homophobia is rooted in a different set of cultural prejudices and social circumstances from, for instance, discrimination against the disabled.  It must be addressed in part by disentangling those distinctive contributing factors, and dispelling them in communities and families.  Homophobia affects different kinds of communities than does, for example, racism: its victims are differently organized and differently able to resist it.  This means that governments should set up particular mechanisms to address, redress, and combat particular forms of inequality.  It also means that policies, laws, and practices should be looked at closely to find the hidden ways in which they might further discrimination against particular identities and groups. For example, the decay of public transport systems needs to be seen not just as a problem for the "general population"-but as a life-or-death issue for non-conforming women who may be singled out for rape if walking alone at night.  In addition to working closely with NGOs who can contribute to such understandings, governments should designate a focal point on each area of inequality within each ministry and department, to carry forward comparable analyses across all its policies.  Not all inequalities are alike.  States must move toward equal treatment by addressing specific injustices through appropriate means.

Governments should also, however, attend to the intersections of identities, of rights, and of forms of discrimination.  On the one hand, no one is "just" gay or lesbian.   Everyone has other identities, fits under other forms of status, which can partially empower or further disempower them.   Nor can any violation be altogether separated from the context of other abuses or inequities in a society, which may enable it or extend its effects.  African or coloured lesbians and gays may be particular targets of violence in townships; but the abuse is inseparable from the almost-unendurable poverty which makes violence a general condition there.  Apparent protections which suppose the existence of prosperous, property-owning rights-bearers-such as definitions of "partnership" which require showing "shared obligations"-may omit or unfairly burden the poor who have less by those standards to share, or show. 

Most notably, many people spoke to us at length about how inequality between the sexes relegates many South African women to lives as second-class citizens.  Women and girls across many of the country's cultures are taught to obey their fathers and husbands, to defer their own needs until those of men are met, and to accept violence as an inevitable form of discipline within the family.  Because the roles of men and women are so entrenched, and because men and women who identify as gay or lesbian often challenge those roles, women's rights are an inextricable aspect of rights for lesbian, gay, bisexual, and transgender people.  It is in the constant threats of sexual violence reported by lesbians that the intersection between sexism and homophobia is most clear.  Many men, angry that women appear to be rejecting them, want to "cure women" by reasserting their violent control. But self-identified gay men and transgender people also suffer from standing at the crossroads of gender and sexuality.  Many are persecuted because they refuse to conform to norms of what "men" or "women" should be.

Governments must identify how redress can be made accessible.There are clear actions that the South African government can and should take-most notably, creating a special commission or other mechanisms through which people could report discrimination or harassment based on sexual orientation. Such a mechanism would have the expertise and resources to investigate the complaints, advise a remedy, and identify patterns of violations as well as proposing legal and policy change. This is particularly important in South Africa where very few people have the resources to retain lawyers in legal proceedings-and where only one NGO regularly conducts litigation under the Equality Clause.  Yet other steps are needed as well.  The government needs to ensure adequate training in sexual orientation law as well as other aspects of equality law, to ensure a ready cadre of lawyers to take up cases where legal action is required.  It should create incentives for attorneys to engage in pro bono work.  It should ensure that people know about opportunities for redress-and that state agencies and officials are trained in how to respond.  It does no good that domestic-violence protection orders are now available to same-sex partners, if the information is not publicized in their gathering places or communities¾or if people still fear policemen will laugh at them when they step through the station door.

This leads to the next and largest responsibility. The state must promote rights.  It must do so, first, by training its own personnel in both the particularity and the intersections of rights protections.  Police, for example, must know that "sexual orientation" is a protected status, and grasp its multiple cultural and social meanings; they must be ready to respond sensitively to lesbian, gay, bisexual, and transgender victims of crimes and violations; they must understand how gender, or race, or the fact of poverty, makes some LGBT people additionally vulnerable; they must engage in outreach to affected communities, to rebuild trust after years of police harassment and police-endorsed abuse.  But the state must also use the multiple tools at its disposal to educate individuals and communities.  Schools must teach about sexual orientation, not only in the context of sexual health or HIV/AIDS, but as an issue of equality in a rights-education curriculum.  Press and publicity campaigns should promote images of equality in which sexual orientation¾and lesbian, gay, bisexual, and transgender faces and voices¾are an unequivocal part.  The South African government should work with community-based groups and NGOs in developing these campaigns, as well as other educational materials. 

The whole work of rights education-whether within marginalized communities, or in the population as a whole-must not fall on those vulnerable to violations.  The state must be a full partner as well as a sponsor.  It must fund and consult with NGOs fairly, without discrimination, recognizing their right not only to provide essential services, but to advocate against the state as well.  But the state must not shunt its duties onto civil society.  The state must itself undertake the task of outreach to the possible victims-and the potential perpetrators-of violations.

As part of this, the South African government must publicly affirm the Equality Clause, and promote its values in international relations. South Africa's official silence in the face of homophobia, at home or abroad, is ultimately an affront to the principles on which its new democracy is founded.

None of the men and women we spoke to in South Africa, or elsewhere, were passively waiting for government intervention. They were organizing, campaigning, doing outreach-or leading their lives boldly, walking down streets proudly, looking for hope or love.  Many spoke of wanting to claim their own rights, to take charge of their futures.  Yet many felt confined by the past, by a complex of intersecting injustices: their lack of education-often a direct result of being expelled for being gay, lesbian, transgender-their joblessness, their poverty, their powerlessness in the family or community.

"We are a country of change," one gay man told us. "We have so many things in the constitution that ordinary people know is there: but every day they live a life in which they are still excluded, opposed, discriminated against."[566]  Hopelessness, passivity, fear, and self-loathing result from the endless experience of a chain of negations.  Until the South African government breaks that chain, by taking the full breadth of the Equality Clause seriously, part of its population will remain excluded from the constitution's promise.

[407] IGLHRC interview by Scott Long with Mike Waters, Johannesburg, South Africa, November 23, 2001.

[408] IGLHRC interview by Kagendo with Joyce, Johannesburg, South Africa, November 23, 2001.

[409] Human Rights Watch interview with Derek, Cape Town, South Africa, August 5, 2001.

[410] See the Appendix for detailed information on the status of homosexual conduct in apartheid-era South African law.

[411] Edwin Cameron, "Sexual Orientation and the Constitution: A Test Case for Human Rights," South African Law Journal, 1993, p. 467.

[412] For detailed information on these provisions, see the Appendix.

[413]Langemaat v Minister of Safety and Securityand Two Others, case no. 19077/97, 4 February 1998.

[414]National Coalition for Gay and Lesbian Equality and 13 Others v The Minister of Home Affairs et. al., case no. 3988/98.

[415]Martin v Beka Provident Fund, case no. PFA/GA/563/99, in the Tribunal of the Pension Funds Adjudicator.

[416]Satchwell v the President of South Africa and another, case no. CCT45/01.

[417]Van Rooyen v Van Rooyen 1994 (2) SA 325 (W)A, Witwatersrand Local Division, case no. 22547/92.  The ruling also found, however, that the lifestyle could present a "danger" to minor children and forbade the mother from sharing a bedroom with her partner while the child was in the house.  This determination would likely be found discriminatory today.  This and other decisions were significant, but (unlike De Vos v Minister of Welfare, below) mostly unreported-meaning they did not establish precedents throughout the judicial system.

[418] High Court of South Africa, Transvaal Provincial Division, Du Toit and De Vos v Minister of Welfare, case no. 23704/2001.

[419] IGLHRC interview by Scott Long with Evert Knoesen, Equality Project, Johannesburg, South Africa, November 21, 2001.

[420] Ibid.

[421] See Shadrack B. O. Gutto, Equality and Non-Discrimination in South Africa: The Political Economy of Law and Law Making (Cape Town: New Africa Education, 2001), for a detailed discussion of the act, its strengths and limitations.

[422] It appears that the confusion of present law does not stipulate an age of consent for women having sex with women.

[423] The commission, a body appointed by the chief justice of the Constitutional Court, and mostly composed of jurists and legal academics, develops discussion papers offering legislative proposals for Parliament's consideration.

[424]See, minutes of the briefing by the the South African Law Commission to the Parliamentary Joint Monitoring Committee on Improvement of Quality of Life and Status of Women, October 18, 2002, at www.pmg.org.za, retrieved October 25, 2002. See also, the South African Law Commission website at  www.server.law.wits.ac.za/salc/.

[425] IGLHRC interview by Scott Long with Mike Waters, Johannesburg, South Africa, November 23, 2001.

[426] The very identity of its constituent communities is a politically contested issue in South Africa. In this chapter, in accordance with prevailing usage in South Africa, Human Rights Watch and IGLHRC will use "black" to refer to all three subcategories of those not previously designated "white" in South Africa, including those of African or Indian ancestry as well as those of mixed race.  "African" will be used to refer specifically to those of African ancestry and "coloured" for those of mixed race.  However, some informants quoted employed the term "black" exclusively to mean those of African ancestry. 

[427] Human Rights Watch interview with Nonceba, Eastern Cape, South Africa, July 24, 2001.

[428] Human Rights Watch interview with Diwysa, Eastern Cape, South Africa, July 24, 2001.

[429] Human Rights Watch interview with Tsembani, Durban, South Africa, July 17, 2001.

[430] Human Rights Watch interview with Thulani Mhlongo, Soweto, South Africa, July 12, 2001.

[431] Human Rights Watch interview with members of the Triangle Project's Black Lesbian Support Group, Gugulethu, South Africa, August 3, 2001.

[432] Human Rights Watch interview with Bernedette Muthien, programme convenor of the Applied Programme at the African Gender Institute, Cape Town, South Africa, August 2, 2001;and Human Rights Watch interview with Vainola Makan of Khib Women's Center, a black women's organization dedicated to the emancipation of women, Cape Town, South Africa, August 2, 2001.

[433] Human Rights Watch interview with Vasu Reddy, Durban Community Lesbian and Gay Health Centre, Durban, South Africa, July 17, 2001.

[434] IGLHRC interview by Scott Long with Mazibuko Jara, Johannesburg, South Africa, November 24, 2001.

[435] The women were mostly African; some coloured women also participated.

[436] Human Rights Watch interview with "Nockwaka" (not real name), Eastern Cape, South Africa, July 24, 2001.

[437] Human Rights Watch interview with "Phumi" (not real name), Eastern Cape, South Africa, July 25, 2001.

[438] Human Rights Watch interview with "Phumi" (not real name) Eastern Cape, South Africa, July 25, 2001.

[439] Human Rights Watch interview with  "Thokozile" (not real name), Eastern Cape, South Africa, July 24, 2001.

[440] Human Rights Watch interview with Lamour, Durban, South Africa, July 13, 2001.

[441] Human Rights Watch interview with Lebo, Durban, South Africa, July 13, 2001.

[442] Human Rights Watch interview with "Maria" (not real name), Mamelodi, South Africa, July 11, 2001.

[443] Human Rights Watch interview with Simon, Mamelodi, South Africa, July 11, 2001.

[444] Human Rights Watch interview with Beverly Ditsie, Johannesburg, South Africa, August 2, 2001.

[445] Human Rights Watch interview with Tutuzeni, Gugulethu, South Africa, August 3, 2001.

[446] Human Rights Watch interview with Palesa, Johannesburg, South Africa, July 28, 2001.

[447] Human Rights Watch interview with Pat, Gugulethu, South Africa, August 3, 2001.

[448] Human Rights Watch interview with Noni, Mamelodi, South Africa, July 11, 2001.

[449] Human Rights Watch interview with Katlego, Mamelodi, South Africa, July 11, 2001.

[450] Human Rights Watch interview with Bernedette Muthien, Cape Town, South Africa, August 2, 2001.

[451] See Violence Against Women in South Africa: State Response to Domestic Violence and Rape (New York: Human Rights Watch, 1995), South Africa: Violence Against Women and the Medico-Legal System (New York: Human Rights Watch, 1997), and South Africa: The State Response to Scared at School: Sexual Violence Against Girls in South African Schools (New York: Human Rights Watch, 2001).

[452] For other, comparable shortcomings of SAPS's crime statistics, see Unequal Protection: The State Response to Violent Crime on South African Farms (New York: Human Rights Watch, 2001), pp. 140-143.  SAPS's collection and analysis of statistical data have been widely faulted. After developing a new "crime code" list in the 1990s SAPS was slow to implement it, and the codes it contained did not correspond to legal requirements for the collection of data at local stations: for instance the Domestic Violence Act (Act 116/1998) obliged police to collect domestic violence reports, but in the absence of a crime code those went unreflected in centrally collated statistics.  SAPS actually suspended publishing its crime statistics for a period in 2000, on the grounds that they were inconsistently collected (see Gavin Stewart, "Tshwete promises to publish statistics," Dispatch, September 1, 2000). Publication was later resumed¾though it is not clear that data collection has significantly been rectified¾but since then statistics have only offered estimated rates per 100,000 of population without giving absolute numbers.

[453] Human Rights Watch interview with Beverly Ditsie, Johannesburg, South Africa, July 28, 2001.

[454] IGLHRC interview by Kagendo with Joyce, Johannesburg, South Africa, November 23, 2001.

[455] Des'ree, in a Human Rights Watch interview with members of the Triangle Project's Black Lesbian Support Group, Gugulethu, South Africa, August 3, 2001.

[456]Human Rights Watch interview with members of Triangle Project's Black Lesbian Support Group, Gugulethu, South Africa, August 3, 2001. Many complaints about state failure adequately to prepare criminal justice personnel have arisen in the implementation of the Domestic Violence Act (DVA) since its 1998 passage.  One independent study determined that "there is no movement within the government to bolster the DVA by providing resources and training," and found an "alarming lack of infrastructure and resources within the system" as well as "demotivated, untrained and frustrated law enforcement personnel."  The study concluded that "the Domestic Violence Act is inaccessible to many people," an inaccessibility only compounded for those already disposed to mistrust criminal justice processes.  See Penny Parenzee, Lillian Artz, and Kelley Moult, Monitoring the Implementation of the Domestic Violence Act: First Research Report 2000-2001, based on research conducted by the Consortium on Violence Against Women (Institute of Criminology, University of Cape Town; Gender Project, Community Law Centre, University of the Western Cape; and Rape Crisis Cape Town), 2001, pp. 105-113.

[457] Human Rights Watch interview with Pat, Gugulethu, South Africa, August 3, 2001.

[458] Human Rights Watch interview with Adie, Durban, South Africa, July 15, 2001.

[459] Human Rights Watch interview with Thulani Mhlongo, Township AIDS Project/Soweto HIV/AIDS Counselors Association, Soweto, South Africa, July 12, 2001.

[460] IGLHRC interview by Kagendo with Joyce, Johannesburg, South Africa, November 23, 2001.

[461]See http://www.mask.org.za/SECTIONS/AfricaPerCountry/ABC/south%20africa/sou-th%20africa_021.htm, retrieved October 29, 2002.

[462] See http://www.saps.org.za/17_policy/19_humanrights/index.htm, retrieved October 29, 2002.

[463] Lillian Artz and Barbara de Oliveira, "Policing," in South African Human Rights Yearbook, Vol. 8 (Durban: Center for Socio-Legal Studies, University of Natal, 2000), p. 189.

[464] Isabelle de Grandpre, "Human Rights and Policing," Democracy Watch (publication of the Center for Socio-Legal Studies, University of Natal), Vol. 7, 1999.

[465] IGLHRC interview by Scott Long with Wendy Isaack, Equality Project, Johannesburg, South Africa, November 21, 2001.

[466] Ibid.

[467] Human Rights Watch interview with Beverly Ditsie, Johannesburg, South Africa, August 2, 2001.

[468] See Glen Retief, Policing the Perverts: an exploratory investigation of the nature and social impact of police action towards gay and bisexual men in South Africa, research report submitted to the Institute of Criminology at the University of Cape Town and to the Human Sciences Research Council, March 1993.

[469] "Homophobic police raid Therapy," at http://www.equality.org.za/news/2002/-20020819therapy.htm, retrieved October 29, 2002.

[470] Human Rights Watch interview with Nonhlahla Mkhize, Durban, South Africa, July 20, 2001.

[471] Human Rights Watch interview with Beverly Ditsie, Johannesburg, South Africa, August 2, 2001.

[472] Human Rights Watch interview with Lamour, Durban, South Africa, July 13, 2001.

[473]Human Rights Watch interview with members of Triangle Project's Black Lesbian Support Group, Gugulethu, South Africa, August 3, 2001.

[474] Human Rights Watch interview with "Maria," Mamelodi, South Africa, July 11, 2001.

[475] Human Rights Watch interview with a student who wished to remain anonymous, Durban, South Africa, July 13, 2001.

[476] Human Rights Watch interview with Tumi, Durban, South Africa, July 13, 2001.

[477] Human Rights Watch interview with Palesa, Johannesburg, South Africa, July 28, 2001.

[478] Human Rights Watch interview with Adie, Durban, South Africa, July 15, 2001.

[479] Human Rights Watch interview with Nonhlahla Mkhize, Durban, South Africa, July 20,. 2001.

[480] Ibid.

[481] Human Rights Watch interview with Tsembani, HIV/AIDS coordinator, Durban Gay and Lesbian Community Health Center, Durban, South Africa, July 17, 2001.

[482] Human Rights Watch interview with Thulani Mhlongo, Township AIDS Project/Soweto HIV/AIDS Counselors Association, Soweto, South Africa, July 12, 2001.

[483] Human Rights Watch interview with Vasu Reddy, Durban Gay and Lesbian Community Health Centre, Durban, South Africa, July 17, 2001.

[484] Human Rights Watch interview with Noni, Mamelodi, South Africa, July 11, 2001.

[485] Human Rights Watch interview with Patty, Mamelodi, South Africa, July 11, 2001.

[486]National Coalition for Gay and Lesbian Equality et. al. v Minister of Justice et. al. 1999 (1) SA 6 (CC) at 21.

[487] IGLHRC interview by Scott Long with Wendy Isaack, Equality Project, Johannesburg, South Africa, November 21, 2001. The United Nations Standard Minimum Rules for the Treatment of Prisoners state (Art. 8A) that "Men and women shall so far as possible be detained in separate institutions; in an institution which receives both men and women the whole of the premises allocated to women shall be entirely separate."  Inasmuch as one evident purpose of the rule is to prevent sexual abuse of women¾and biological males who identify as women are likely to be particular targets for sexual and physical abuse¾placing pre- or post-operative transgender people with prisoners of their own birth sex may place them in grave danger.  However, the needs of pre-operative transgender people can still present complex problems for prison authorities.  It is clear that placing transgender people, for their own "protection," in an environment ordinarily reserved to punish disciplinary infractions is an unacceptable solution¾one also prohibited by the Standard Minimum Rules, which state (Art. 30) that no prisoner shall be punished except for a stipulated disciplinary offence.  It is incumbent upon South African authorities to develop protocols for the protection of transgender and other vulnerable prisoners, to ensure their full safety through measures which are non-punitive and do not entail social isolation.  These protocols should be developed in consultation with lesbian, gay, bisexual, and transgender groups.

[488] IGLHRC interview by Scott Long with Wendy Isaack, Equality Project, Johannesburg, South Africa, November 21, 2001.

[489] This long-standing medical practice in South Africa has had negative consequences as well.  In a particularly gruesome revelation of previously-hidden apartheid-era practices, the press revealed and the government acknowledged in 2000 that the South African Defence Force (SADF) had carried out a "sexual realignment programme" prior to 1994.  From the 1970s until an unknown date in the 1980s or 1990s, SADF members who were identified as lesbian or gay were subjected to aversion therapy-electroshock treatment designed to alter their sexual orientation, and amounting to torture-as well as medical experimentation.  In some cases, gay men were reportedly forced to undergo chemical castration, and lesbians and gay men were compelled to undergo sex reassignment surgery.  In at least one case reported to the Equality Project, initial surgical removal of a person's genitalia was undertaken; however, hormone therapy was afterwards suspended, leaving the person in a humiliating limbo of contradictory sex and gender identity.  Suicides reportedly resulted.  One of the doctors responsible for the program is reportedly now resident in Canada. The Equality Project has requested the minister of defence to appoint a commission of inquiry; no definite answer has yet been forthcoming. IGLHRC interviews by Scott Long with Carrie Shelver, Johannesburg, South Africa, August 18, 2000, and with Evert Knoesen, Johannesburg, South Africa, November 21, 2001. See also, "Request for the Appointment of a Commission of Inquiry" from the Equality Project to Minister of Defence Mosuia Patrick Gerard Lekota, August 14, 2000, as well as confidential transcripts of interviews with program survivors, on file with IGLHRC.

[490] IGLHRC interview by Scott Long with Evert Knoesen, Johannesburg, South Africa, November 21, 2001.

[491]For an account of some of the consequences of disparity between apparent gender and legally recorded sex, see IGLHRC's report, "The Rights of Transvestites in Argentina," by Lohana Berkins, Scott Long, and Alejandra Sarda, at http://www.iglhrc.org/news/factsheets/Argentina_trans.html.

[492]Wendy Isaack, for instance, observes that "Many transgender people are abused or raped in their communities.  Many work as sex workers and are exposed to rape by clients or street thugs.  And the law won't say it is rape." IGLHRC interview by Scott Long with Wendy Isaack, Johannesburg, South Africa, November 21, 2001.

[493] South African Law Commission, "Investigation into the Legal Consequences of Sexual Realignment and Related Matters" (Project 52, RP 32/1996).  See also, "Law would benefit sex-change people," Sunday Times, June 19, 1994.

[494]South African Commission on Gender Equality, Annual Report 1998,  at http://www.cge.org.za/docs/ann_report4.html, retrieved August 25, 2002.

[495] IGLHRC interview by Scott Long with Evert Knoesen, Johannesburg, South Africa, November 21, 2001.

[496] Human Rights Watch interview with Adie, Durban, South Africa, July 15, 2001.

[497] Community Agency for Social Enquiry, "Awareness of Human Rights Institutions," 2000, at http://www.case.org.za/htm/hraware.htm#access, retrieved October 23, 2002.

[498] IGLHRC interview by Scott Long with Wendy Isaack, Johannesburg, South Africa, November 21, 2001.

[499] Human Rights Watch interview with Beverley Ditsie, Johannesburg, South Africa, July 28, 2001. 

[500] Human Rights Watch interview with Nonhlahla Mkhize, Durban, South Africa, July 20, 2001.

[501] IGLHRC interview by Scott Long with an activist who wished to remain anonymous, Johannesburg, South Africa, November 21, 2001.

[502] IGLHRC interview by Scott Long with Wendy Isaack, Johannesburg, South Africa, November 21, 2001.

[503] IGLHRC interview by Scott Long with Wendy Isaack, Johannesburg, South Africa, November 21, 2001.

[504] Johan de Waal, Iain Currie, and Gerhard Erasmus, The Bill of Rights Handbook, fourth ed.(Cape Town: Juta, 2001), pp. 216-17, 231-32.

[505] IGLHRC interview by Scott Long with Carrie Shelver, Equality Project, Johannesburg, South Africa, November 21, 2001.  Publication is expected in 2003.

[506] Statistics available on the South African Department of Labor website, http://www.labour.gov.za, retrieved April 23, 2000.

[507] Human Rights Watch interview with Patty, Mamelodi, South Africa, July 11, 2001.

[508] Human Rights Watch interview with Des'ree, Gugulethu, South Africa, August 4, 2001.

[509] Human Rights Watch interview with Palesa, Johannesburg, South Africa, July 28, 2001.

[510] Human Rights Watch interview with Palesa, Johannesburg, South Africa, July 28, 2001.

[511] Human Rights Watch interview with Charmaine, Gugulethu, South Africa, August 4, 2001.

[512] Human Rights Watch interview with Funeka, Gugulethu, South Africa, August 4, 2001.

[513] Human Rights Watch interview with Pat, Gugulethu, South Africa, August 4, 2001.

[514] Human Rights Watch interview with Thabo, Soweto, South Africa, July 29, 2001.

[515] Human Rights Watch interview with Adie and Louanna, Durban, South Africa, July 15, 2001.

[516] Human Rights Watch interview with Funeka, Gugulethu, South Africa, August 4, 2001.

[517] IGLHRC interview by Scott Long with Evert Knoesen, Johannesburg, South Africa, November 21, 2001.

[518] See IGLHRC's report, Conceiving Parenthood: Parenting and the Rights of Lesbian, Gay, Bisexual and Transgender People and their Children, 2000, pp. 188-90.

[519] Human Rights Watch interview with Evert Knoesen, Johannesburg, South Africa, July 13, 2001.

[520] Carmel Rickard, "Gay judges take on the law," Sunday Times, South Africa, July 29, 2001.

[521] Human Rights Watch interview with Evert Knoesen, Johannesburg, South Africa, July 13, 2001.

[522] The government had contested the possible application of the ruling to unmarried heterosexual couples, fearing the possible financial consequences of a general extension of benefits to such couples.  The Constitutional Court ruling held only that the relevant Acts should be amended to include same-sex couples, and that such differentiation between married couples and same-sex couples was unconstitutional.

[523] IGLHRC interview by Scott Long with Carrie Shelver, Equality Project, New York, United States, September 3, 2001.

[524] IGLHRC interview by Scott Long with Evert Knoesen, Johannesburg, South Africa, November 21, 2001.

[525] Human Rights Watch interview with Tumi, Springs, South Africa, July 13, 2001.

[526] Human Rights Watch interview with Tumi, Springs, South Africa, July 13, 2001.

[527] Human Rights Watch interview with Carol Bower, Athlon, South Africa, August 1, 2001.

[528] Human Rights Watch interview with Adie and Louanna, Durban, South Africa, July 15, 2001.

[529] Human Rights Watch interview with Adie and Louanna, Durban, South Africa, July 15, 2001.

[530] IGLHRC interview by Scott Long with Wendy Isaack, Johannesburg, South Africa, November 21, 2001.

[531] South African Law Commission, Discussion Paper 74, "Customary Marriages," Project 90, "The Harmonisation of the Common Law and the Indigenous Law," August 1997.

[532] South Africa Law Commission, Discussion Paper 101, Project 59, "Islamic Marriages and Related Matters," 2001.

[533] IGLHRC interview by Scott Long with Evert Knoesen, Johannesburg, South Africa, November 21, 2001.  For a discussion of customary law and marriage, see the Appendix.  Knoesen points to possible, unexpected constitutional consequences of the recognition of polygamy-particularly since the South African Constitution (unlike some other constitutions in the region) does not mandate the recognition or special status of customary practices.  What happens when the legislature does give those practices special status? Does it open claims under the Equality Clause?  Knoesen says, "As it stands, only African marriages can be polygamous-not others. This makes no sense: and there will be a constitutional claim that if polygamy is permitted, it should be permitted to all communities . . . And what does that raise? The possibility of multiple relationships, bisexual relationships for example, being recognized." In fact, some policy statements of the South African government seem to move toward defining "family" in broader ways which no longer need have an exclusive, heterosexual relationship between two people at its center-or with centers which no longer need be modelled after such a central relationship.  These new definitions might allow the inclusion not only of "traditional" family concepts built around extended kinship relations, but of "modern" extended networks of care.  For instance, the Department of Social Welfare, in a 1996 white paper, defined a "family" by function and not by structure, as: "Individuals who either by contract or agreement choose to live together intimately and function as a unit in a social and economic system.  The family is the primary social unit which ideally provides care, nurturing and socialisation for its members.  It seeks to provide them with physical, economic, emotional, social, cultural and spiritual security."  Government Gazette No. 16493, February 2, 1996, quoted in National Coalition for Gay and Lesbian Equality submission to the SALC, "Project 110: The Review of the Child Care Act: Comment on the Parent-Child Relationship," April 2, 1999.  This hardly requires a married, a monogamous, or even a two-person intimate relationship to be the linchpin of a "family" as a site of economic solidarity and care.  See also IGLHRC's report, Conceiving Parenthood: Parenting and the Rights of Lesbian, Gay, Bisexual and Transgender People and their Children, 2000, pp. 188-90.

[534] South African Law Commission, Issue Paper 17 (Questionnaire), Project 118, "Domestic Partnerships," 2001.  See also, "Media Statement by the South African Law Commission Concerning Its Investigation Into Domestic Partnerships," October 5, 2001, which describes "early notions of marriage as the only form of acceptable relationship" as outdated-apparently progressive language which however seems aimed at making room for the state to evade its constitutional obligation to make the status of marriage available without discrimination.  See also the submission by the Women's Legal Centre, Cape Town, which by contrast urged extending marriage to same-sex partners, but creating a second status of domestic partnership, open to heterosexuals as well and resembling common-law marriage as understood in other jurisdictions, which would retrospectively recognize unregistered relationships and accord them a different set of rights and obligations.  Lulama Nongog and Coriaan de Villiers, "Comments to South African Law Commission Issue Paper 17 (Questionnaire),"  http://www.wlce.co.za/submission18.html, retrieved August 21, 2002.

[535] In France, for instance, the Pacte Civil de Solidarite (Civil Solidarity Pact, or PACS), which since 2000 has recognized unmarried heterosexual as well as homosexual relationships, maintains unequal adoption restrictions and imposes a three-year waiting period before PACS couples can claim tax and other benefits.  Other European states which have opened forms of "domestic partnership" to same-sex couples continue to impose discriminatory restrictions on adoption and child custody.  (However, the Netherlands ended such discrimination in 2001 by becoming the first nation in the world to open the status of civil marriage to same-sex couples.)

[536] For example, as noted above, the De Vos case opened joint adoption rights to same-sex partners: High Court of South Africa, Transvaal Provincial Division, Du Toit and De Vos v Minister of Welfare, case no. 23704/2001.

[537] IGLHRC interview by Scott Long with Evert Knoesen, Johannesburg, South Africa, November 21, 2001.

[538] Donna A. M. Smith, "High Court reserves judgement in gay marriage case," Behind the Mask, http://www.q.co.za/2001/2001/20/17-marriage.html, retrieved October 20, 2002; submissions on behalf of the Lesbian and Gay Equality Project, High Court of South Africa, Transvaal Provincial Division, Fourie and Others v Minister of Home Affairs, case no. 17280/02.

[539] Human Rights Watch interview with Vasu Reddy, Durban, South Africa, July 20, 2001. 

[540]Promotion of Equality and Prevention of Unfair Discrimination Act, Act 4/2000.

[541] Human Rights Watch interview with Bernedette Muthien and Vainola Makan, Cape Town, South Africa, August 2, 2001.

[542] Ibid.

[543] IGLHRC interview by Scott Long with Carrie Shelver, Johannesburg, South Africa, November 21, 2001.

[544] IGLHRC interview by Scott Long with Evert Knoesen, Johannesburg, South Africa, November 21, 2001.

[545] Human Rights Watch interview with Bernedette Muthien, Cape Town, South Africa, August 3, 2001. 

[546] Human Rights Watch interview with Carol Bower, Cape Town, South Africa, August 1, 2001.

[547] Phumi Nhlapo, "Let the moffies have Cape Town - Durban mayor,"Natal Mercury, April 11, 2001.

[548] Lee Rondganger, "Durban mayor apologises for 'moffie' comments," Natal Mercury, April 12, 2001.

[549] Human Rights Watch interview with Vasu Reddy, Durban, South Africa, July 20, 2001. 

[550]He also accused Cameron of trying to "sanitise homosexuality and its associated guilt trips," and of trying to persuade the ANC to "treat HIV/AIDS differently from other diseases." Judith Soal, "DP candidate stands by his AIDS comments," Cape Times, May 11, 1999.

[551] The party was formed from a merger of the Democratic Party with the New National Party, successor to the apartheid-era ruling party.

[552] "Gay lobby demands Marais apology," Daily Dispatch, May 14, 2002.

[553] "Response by ANC to Premier Marais' Statement on DA Gay Conspiracy Against Him," issued by African National Congress/Western Cape, May 13, 2002.  As accusations of sexual harassment mounted, Marais resigned.

[554] Human Rights Watch interview with Sheryl Ozinsky, Cape Town, South Africa, August 7, 2001. 

[555] Ibid. 

[556] Ibid. 

[557] Ibid. 

[558] Ibid. 

[559] See Chapter I, above, for South Africa's position at the 1995 Fourth World Conference on Women in Beijing.

[560] Addendum to the "Declaration on Gender and Development" on "The Prevention and Eradication of Violence Against Women and Children," SADC Gender Unit, "Gender Mainstreaming at SADC: Policies, Plans, and Activities" (Botswana, 1999), para. H.ii and H.iv.  Cited in Barbara Klugman, "Sexual Rights in Southern Africa: A Beijing Discourse or a Strategic Necessity," Harvard Journal of Health and Human Rights, vol. 4, no. 2.

[561] IGLHRC interview by Scott Long with Wendy Isaack, Johannesburg, South Africa, November 21, 2001.

[562] IGLHRC interview by Scott Long with Francis Chisambisha, Johannesburg, South Africa, November 20, 2001. The Office of the United Nations High Commisioner for Refugees (UNHCR) recently reaffirmed a long-standing position: "Where homosexuality is illegal in a particular society, the imposition of severe criminal penalties for homosexual conduct could amount to persecution, just as it would for refusing to wear the veil by women in some societies.  Even where homosexual practices are not criminalized, a claimant could still establish a valid claim where the State condones or tolerates discriminatory practices or harm perpetrated against him or her, or where the State is unable to protect effectively the claimant against such harm."  See UNHCR, "Guidelines on International Protection: Gender-Related Persecution within the context of article 1A(2) of the 1951 Convention and its 1967 Protocol relating to the status of refugees," UN Doc. HCR/GIP/02/01, May 7, 2002, at 17 ("Persecution on account of one's sexual orientation").

[563] Human Rights Watch interview with Vasu Reddy, Durban, South Africa, July 20, 2001. 

[564] Ibid. 

[565] Human Rights Watch interview with Evert Knoesen, Johannesburg, South Africa, July 13, 2001.

[566] Human Rights Watch interview with Derek, Cape Town, South Africa, August 5, 2001.