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Address by the Deputy Minister of Justice and Constitutional Development, the Hon JH Jeffery, MP, at the CSO Alliance Building Workshop on LGBTI Rights, Johannesburg, 24 February 2014

Programme Director
Representatives of NGOs and civil society
Representatives from the Foundation for Human Rights
The Regional Heads of the DOJCD
Officials from various government Departments
Representatives from Chapter 9 Institutions
Colleagues and friends,
                                       
Thank you for the opportunity to be here and be part of this very important initiative.  At the previous workshops I went into some detail about the work of the National Task Team and where we are at the moment. But I’m sure that some of the detail has already been discussed during the course of this morning’s session, so suffice for me to say that I am pleased that things are indeed moving. Despite some earlier delays, the Task Team is now well on-track and I believe that with the valued support and involvement of civil society good progress has been made and will continue to be made.

I thought it best to raise some of the more political and policy issues with you this afternoon.

Firstly, South Africa not only talks the talk, but walks the walk when it comes to the protection of the rights of LGBTI persons in our country. We are a world leader on this issue, there is no denying that. South Africa was the very first country in the world to prohibit discrimination based on sexual orientation.  We have a Constitution that is often hailed as one of the most progressive in the world. We have the equality clause in the Constitution.  We have a progressive legislative framework. We have legislated against discrimination on the grounds of sexual orientation in the workplace. 

In 1999, we introduced the Domestic Violence Act that classifies a same-sex relationship as a ‘domestic relationship’, in other words, thus qualifying to receive legal protection in terms of this Act. The Promotion of Equality and Prevention of Unfair Discrimination Act of 2000 and the introduction of Equality Courts came about in an attempt to give effect to the spirit of the Constitution, in particular the promotion of equal enjoyment of all rights and freedoms by every person. We have legalised same-sex marriages and both joint and step adoption by same-sex couples. In South Africa, intersex persons are permitted through the Alteration of Sex Description and Sex Act of 2003 to undergo a sex change.   

Amnesty International in its 2013 report named “Making love a crime: Criminalization of same-sex conduct in Sub-Saharan Africa” calls South Africa “a country which is exemplary in, and should be applauded for, its active commitment to including protections against discrimination on grounds of sexual orientation and gender identity in its constitution and for seeking to persuade neighbouring countries to do the same.”

In March 2012 we took the lead during the first debate at the United Nations on the issue of gay rights. Reporting on the event, the Mail and Guardian writes that South Africa positioned itself firmly as a global leader in the protection of the rights of LGBTI people and played a key role in preventing a walkout of other African states. The historic debate, which is argued by some to have been “the most divisive yet in the history of the United Nations General Assembly’s Human Rights Council”, was sponsored by South Africa and Brazil.

In short, we are way ahead of other countries, or states of countries, when it comes to LGBTI rights. For example, the United States Senate only passed their Employment Non-discrimination Act (or ENDA, as it’s called) at the end of last year.  It is the first time that the U.S. Senate approved legislation to protect LGBT employees from discrimination in the workplace. Recently some 80 000 French people marched in Paris against new laws which legalise same-sex marriage. South Carolina’s legislators recently voted to cut funding from two colleges in the state, because the colleges had assigned LGBT-themed books as prescribed or required reading for students. The College of Charleston, for example, had assigned a bestselling memoir detailing the lesbian author’s relationship with her father. One of the members of the legislature said that the colleges must provide alternate reading options for students who want to opt out of the required reading materials.

Now these types of debates won’t take place in South Africa, because we have dealt these issues. We know where we stand on LGBTI issues in South Africa. As Judge Albie Sachs said in the case of Minister of Home Affairs v Fourie:
“A democratic, universalistic, caring and aspirationally egalitarian society embraces everyone and accepts people for who they are. To penalise people for being who and what they are is profoundly disrespectful of the human personality and violatory of equality. Equality means equal concern and respect across difference. It does not presuppose the elimination or suppression of difference. Respect for human rights requires the affirmation of self, not the denial of self.”

Let me also take the opportunity to say something issues on our continent.  Our government has been criticised by some because they believe that Government hasn’t taken a strong enough position on the anti-gay laws of other African countries. But let me assure you that South Africa is involved, and very actively involved, in trying to mediate or bring about a better understanding of the importance of the protection of gay rights. Our track record at the UN proves this. But it’s also about the way we approach diplomacy. We don’t practice what I like to call “megaphone diplomacy”, in other words, standing on the rooftops and shouting “we condemn, we condemn” with a load-hailer, because we know that that approach achieves very little. We believe it is better to try to play a more mediating role.

On a more positive note, one must also add that a number of African countries have introduced legislation to prohibit discrimination on the basis of sexual orientation, or they have removed discriminatory provisions from some of their existing legislation, these countries include the Seychelles, Mozambique, Cape Verde, Mauritius and Botswana.

Programme Director,
When it comes to legislation and policy the ANC government has delivered. If we were to have had a referendum at the time of the passing of the Civil Unions Bill I seriously doubt that we would have had the support of the majority of the people in our country. But we passed the Bill anyway. Sometimes it is the task of the legislation to reflect the norms and attitudes of society, but sometimes legislation must go one step further and not simply reflect society, but actively bring about change.  Often we, in government, are asked the question, but what about people’s traditional views or their culture or their religious beliefs and as UN High Commissioner for Human Rights Navi Pillay says:

“People are entitled to their opinion. They are free to disapprove of same-sex relationships, for example … they have an absolute right to believe and follow in their own lives whatever religious teachings they choose. But that is as far as it goes. The balance between tradition and culture on the one hand and universal human rights on the other must be struck in favour of human rights.”

We know that there is only so much that one can do by way of legislation. You cannot pass a law that will guarantee that people change their attitudes and prejudices. We know that there is a gap or a disconnect between the legal position and reality.   Despite increasing legislative recognition and protection afforded to the LGBTI persons, we sadly live in a society that is still strongly homophobic. There are still, sadly, people in our society who continuously question or condemn the cultural, religious or social legitimacy of homosexuality.  Discrimination and violent attacks are often part of the daily life of LGBTI persons. We all know the tragic events involving the “corrective” rapes and deaths of Eudy Simelane, Noxolo Nogwaza and Duduzile Zozo, to name a few.

There are also some who believe that being gay is contrary to traditional African culture and therefore un-African. On that issue, last week well-known Nigerian writer Chimamanda Adichie wrote a piece in which she, with great sensitivity and empathy, defends gay rights in Africa. She writes about a gay man she knew called Sochukwuma. She writes: “… it is the idea of ‘unafricanness’ that is truly insidious. Sochukwuma was born of Igbo parents and had Igbo grandparents and Igbo great-grandparents. Many Nigerians know somebody like him. The boy who behaved like a girl. The girl who behaved like a boy. The effeminate man. The unusual woman. These were people we knew, people like us, born and raised on African soil. How then are they ‘unafrican?’”

Programme Director,
Why are these crimes happening? When did we become such an intolerant society? The message we need to get out is that LGBTI persons are not infringing anybody’s rights by being themselves. We have to change societal attitudes. A study by OUT showed that only half of their respondents questioned had felt that the Constitution had indeed led to a positive change in the attitudes to homosexuality held by many citizens. About 80% continued to see themselves faced with the same societal prejudice of being ‘abnormal’. A national analysis by the Human Sciences Research Council found that 78% of respondents considered homosexuality as “absolutely unacceptable”. These figures therefore stand to confirm that our communities are still largely influenced by so-called “hetero-normative” views and attitudes, and this is where the need for public education and awareness cannot be overemphasized.

Many of you may be aware that the Minister of Justice and Constitutional Development has recently confirmed that government intends to introduce the concept of hate crimes into our criminal law. One of the key motivations for the proposed changes to the law, included in a draft policy framework, is the violent targeting of LGBTI persons based on their sexual orientation and gender identity, the so-called 'corrective rapes' and murder of lesbians and transgender men, especially in townships. Other motivators included a number of recent racist and xenophobic attacks as well as vandalism targeting religious institutions.

Hate crimes are defined as crimes motivated by prejudice, or based on discrimination, and perpetrated against a person or a group on the basis of their race, religion, national origin, sexual orientation or any other feature that renders them ‘other’ to the perpetrator. Because these are crimes of prejudice, they cannot be prevented and addressed in the same way as other violent crimes.

Our Department has made significant progress with the Policy Framework on Combating Hate Crimes, Hate Speech and Unfair Discrimination.  The Policy Framework provides that various aspects of the current legal regime governing hate crimes, hate speech and other forms of discrimination reflect certain inadequacies.

The Policy Framework is a result of intense research into the development of legislation that will introduce the concept of hate crime to South African criminal law. It will make hate speech a crime and will provide for the development of measures to combat hate crimes, hate speech and unfair discrimination.  The Policy Framework seeks to introduce a further category of newly-defined hate crimes in instances where the conduct would otherwise constitute an offence and where there is evidence of a discriminatory motive on the basis of characteristics such as race, nationality, religion, sexual orientation and the like. The Policy Framework has largely been finalised.  The next step is to open it for public debate.  What has not been resolved is who would best be placed to conduct that debate.  Should it be the Department itself or bodies such as the Human Rights Commission or the SA Law Reform Commission?  The debate will be contentious because of the element of hate speech and the balance that needs to be achieved between freedom of speech and prohibiting hate speech.

The message that needs to be sent out to our communities is one of tolerance and respect. We need to rid our society of homophobia. And we will succeed. If we could defeat apartheid we can also defeat homophobia.

Finally, I want to once again highlight the importance of our Equality Courts and PEPUDA, our equality legislation. Our Equality Courts are under-utilized and we need to make people aware that they can approach our Equality Courts. Also bear in mind that in the Equality Court, if the alleged discrimination is on a prohibited ground, in this case sexual orientation, then the onus is not on the applicant, but on the respondent to prove that the discrimination was fair. Our Equality Courts have handed down many judgments affirming LGBTI rights, such as the Alberton court which affirmed a lesbian couples rights when they wanted to book a specific venue to celebrate their civil union, but the venue refused. Or the case in the Equality Court in Pretoria where a music teacher who worked for a church had his contract terminated because of his sexual orientation.

Programme Director,
I wish you all the best for a very successful workshop. Also let me take the opportunity of thanking civil society and Chapter 9 Institutions notably the CGE and the SAHRC for their valued support, participation and commitment to this process.

And let me, in closing, once again refer to Chimamanda Adichie who summed it up perfectly when she said: “We cannot be a just society unless we are able to accommodate difference, accept difference, live and let live.”

I thank you.