We are writing to express our concern over the proposed Civil Union Bill 2006, due for consideration by Parliament on October 20, 2006. Rather than extending the status of civil marriage to lesbian and gay couples, the bill would create a “civil partnership” that is defined as the “voluntary union between two adult persons of the same sex to the exclusion, while it lasts, of all others.”
South Africa’s Constitutional Court has emphasized that legal recognition of lesbian and gay relationships must address not only “all the practical consequences of exclusion from marriage,” but the injury to human dignity that follows from that exclusion—a clear message that separate is not and never will be equal. The South African Law Reform Commission has warned that “Since the tenet of equal treatment was an important part of the motive for [the Constitutional Court] permitting same-sex marriage, the creation of a separate but equal status would be discriminatory.” Whatever the material rights “civil unions” may entail, the persistent imputation that lesbian and gay couples do not deserve the full dignity of marriage is an offense to their own dignity, as well as to their equality before the law.
Proposed law violates South Africa’s Constitution
The proposal presently before Parliament is a response to the South African Constitutional Court’s December 2005 decision in Minister of Home Affairs and Others v Fourie and Bonthuys and Others. Addressing the marital rights of gay and lesbian people, the Court ruled that “The common law definition of marriage is declared to be inconsistent with the Constitution and invalid to the extent that it does not permit same-sex couples to enjoy the status and the benefits coupled with responsibilities it accords to heterosexual couples.” The Court made its intent clear:
Lying at the heart of this case is a wish to bring to an end, or at least diminish, the isolation to which the law has long subjected same-sex couples. It is precisely because marriage plays such a profound role in terms of the way our society regards itself, that the exclusion from the common law and Marriage Act of same-sex couples is so injurious, and that the foundation for the construction of new paradigms needs to be steadily and securely laid (at 155).
The Court’s ruling was the latest in a series of decisions affirming that discrimination based on sexual orientation has no place in the new South Africa. Those decisions—extending equal benefits to same-sex couples in a range of spheres from immigration to pension and spousal benefits to adoption and child custody—were largely founded on the landmark equality protections of South Africa’s 1996 constitution, which made it the first in the world to include protections against discrimination based on sexual orientation. As you are aware, section 9(3) of the Constitution states: “The state may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth” (emphasis added). This specific provision supplements the fundamental principle of equality before the law with which all provisions of the Constitution are imbued. Section 9(1) reads: “Everyone is equal before the law and has the right to equal protection and benefit of the law.”
In Fourie, the Court mandated Parliament to enact legislation within a year that would remedy the inequality in marriage rights. It clearly circumscribed the terms in which Parliament could do so. The Court warned that Parliament must:
Be sensitive to the need to avoid a remedy that on the face of it would provide equal protection, but would do so in a manner that in its context and application would be calculated to reproduce new forms of marginalisation. Historically the concept of “separate but equal” served as a threadbare cloak for covering distaste for or repudiation by those in power of the group subjected to segregation. The very notion that integration would lead to miscegenation, mongrelisation or contamination, was offensive in concept and wounding in practice. Yet, just as is frequently the case when proposals are made for recognising same-sex unions in desiccated and marginalised forms, proponents of segregation would vehemently deny any intention to cause insult. On the contrary, they would justify the apartness as being a reflection of a natural or divinely ordained state of affairs (at 150).
The Court stressed that the “negative impact” of the denial of equality in marriage “is not only symbolic but also practical, and each aspect has to be responded to”:
Thus, it would not be sufficient merely to deal with all the practical consequences of exclusion from marriage. It would also have to accord to same-sex couples a public and private status equal to that which heterosexual couples achieve from being married (at 81).
This is consistent with the Court’s position in all its cases relating to sexual orientation: that not merely equality but dignity is at stake, and that the two are intertwined; that material benefits are neither an end in themselves nor a sufficient guarantee of equality, but that law must attend to the invidious distinctions, both larger and finer, by which a society affirms or detracts from dignity. Indeed, as the decision states, the Court’s equality jurisprudence in general “emphasises the importance of the impact that an apparently neutral distinction could have on the dignity and sense of self-worth of the persons affected” (at 151). As the Court found in an earlier ruling giving immigration rights to the foreign same-sex partners of South Africans:
The sting of past and continuing discrimination against both gays and lesbians is the clear message that it conveys, namely, that they, whether viewed as individuals or in their same-sex relationships, do not have the inherent dignity and are not worthy of the human respect possessed by and accorded to heterosexuals and their relationships. This discrimination occurs at a deeply intimate level of human existence and relationality. It denies to gays and lesbians that which is foundational to our Constitution … namely that all persons have the same inherent worth and dignity as human beings, whatever their other differences may be” (National Coalition for Gay and Lesbian Equality v Ministry of Home Affairs and Others 2000, at 42).
Proposed legislation inconsistent with international human rights principles
International human rights law is clear in condemning unequal treatment based on sexual orientation. The International Covenant on Civil and Political Rights (ICCPR), to which South Africa is a party, affirms the equality of all people in its articles 2 and 26. In the 1994 case of Nicholas Toonen v Australia, the United Nations Human Rights Committee, the international body of experts that monitors compliance with the ICCPR, found that both these provisions should be understood to include sexual orientation as a status protected against discrimination.
The Universal Declaration of Human Rights (UDHR), the cornerstone of the modern human rights system, states in article 16(1): “Men and women of full age, without any limitation due to race, nationality, or religion, have the right to marry and to found a family. They are entitled to equal rights as to marriage, during marriage, and at its dissolution.” The UDHR also affirms that the family is “entitled to protection by society and the State.”
South Africa’s Constitutional Court has stated that the family thus described need not “be restricted intrinsically, inexorably and forever to heterosexual family units. There is nothing in the international law instruments to suggest that the family which is the fundamental unit of society must be constituted according to any particular model” (Fourie, p. 101). Rather, the Court—along with much contemporary jurisprudence and law—places the emphasis on ensuring that all “modes of establishing families” enjoy legal protection (at 112).
Likewise, the UN Human Rights Committee has noted in its General Comment 19 on “Protection of the family, the right to marriage and equality of the spouses,” that “the concept of the family may differ in some respects from State to State, and even from region to region within a State, and … it is therefore not possible to give the concept a standard definition.” The UN Committee on the Rights of the Child notes: “When considering the family environment, the Convention [on the Rights of the Child] reflects different family structures arising from various cultural patterns and emerging family relationships.”
To recognize and protect families in their diversity, and to ensure the equality of all people before the law, are dual mandates that international human rights law places upon all states. Consistent with them, Belgium, Canada, the Netherlands, and Spain have already recognized the right of lesbian and gay couples to full equality in civil marriage. South Africa’s 1996 Constitution has placed it in the vanguard of countries affirming the full panoply of human rights. South Africa must not now lag behind in making those constitutional protections lived and real.
For many years in South Africa, lesbian and gay relationships were not only denied legal recognition, they were criminalized. The law punished sexual conduct between men with imprisonment. Morals legislation enacted under the apartheid system penalized many forms of so-called “deviant” behavior, and made the policing of private life central to the regime’s apparatus of control.
The drafters of South Africa’s Constitution, and subsequent legislators and jurists, have seen clearly the urgency of eliminating discrimination across the board. The Civil Unions Bill now before Parliament offers a choice. To regress to a condoned and covert inequality is to deny the promise of South Africa’s recent history. If legislation cannot be developed in accordance with the principles of full equality for lesbian and gay people, Parliament should take no action, thereby allowing a non-discriminatory definition of marriage to be read into the law, by the Constitutional Court’s mandate, on December 1, 2006.
Yet Parliament also has the opportunity to take an affirmative step by democratically ending discrimination in marriage rights. South Africa should honor both its history and its legal obligations. It should embrace equality without equivocation, and open the status of civil marriage to all.
Lesbian, Gay, Bisexual and Transgender Rights Program
CC: President Thabo Mvuyelwa Mbeki [via facsimile: (021) 461 6456; (012) 323 8246]
Deputy Minister of Home Affairs, Malusia Gigaba (via email)
House Chairperson, National Assembly, Geoffrey Doidge (via email)