South Africa represents one of the world’s most liberal countries in regard to the legal protection of lesbian, gay, bisexual, transgender, and queer (LGBTQ) rights. It was the world’s first country to include sexual orientation as a ground for non-discrimination in its 1996 constitution (Equality Clause) and on 30 November 2006, it became the fifth country-and the first in Africa-to legalize same-sex marriage through the Civil Union Act.
These legal protections were adopted in a broader context of social reform by the post-apartheid government after the successful organizing of LGBTQ rights activists, veterans of the anti-apartheid movement. In 1993, the African National Congress, in the Bill of Rights, endorsed the legal recognition of same-sex marriages, and the interim Constitution prohibited discrimination on the basis of sexual orientation. These provisions were kept in the new Constitution, approved in 1996, due to the lobbying efforts of LGBT South Africans.
Legal Milestones and Protections
- 1994: Male same-sex conduct was legalized.
- 1996: South Africa became the first jurisdiction in the world to provide constitutional protection to LGBTQ people, via section 9(3) of the South African Constitution.
- 2005: Marriage equality became a reality with the Civil Union Act taking effect in 2006.
- 2006: South Africa became the fifth country in the world and the first and only nation in Africa to legalise same-sex marriage.
- 2007: All discriminatory provisions have been formally repealed.
Since 2003, transgender and intersex persons have been able to amend their sex markers through the Alteration of Sex Description and Sex Status Act. Intersex people have gained some protections, including the Promotion of Equality and Prevention of Unfair Discrimination Act, which, as amended in 2005, groundbreakingly interpreted the definition of “sex” to include intersex people. Therefore, the law now promotes equality for intersex people, protecting them from unfair discrimination, harassment, and hate speech.
Same-sex couples can also adopt children jointly, and also arrange IVF and surrogacy treatments.
Social Attitudes and Challenges
Despite these legal protections, however, public attitudes in South Africa toward homosexuality are mixed. A global Pew Research Center (2013) study reports that 61% of South Africans surveyed in urban settings indicated that homosexuality should not be accepted in society. As Andrew Tucker (2011) argues in his book examining the gap between South Africa’s liberal sexual rights laws and the lived experiences of queer men in Cape Town, while the country’s legal system enshrines de jure protections, many LGBTQ people continue to socially experience de facto marginalization.
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LGBTQ South Africans regularly experience social stigma, discrimination, and extreme forms of violence-with experiences varying across class, ethnic, racial, gender, and geographic lines. LGBTQ youth have indicated that harassment and bullying persist, leading to mental anguish and barriers to education. Many LGBTIQ persons who are economically disadvantaged continue to face discrimination in accessing public services, such as education, justice, social benefits, and health care services. Although South Africa protects sexual orientation in its Constitution, homosexuality is socio-culturally contested and unaccepted.
This uneven and contradictory legal and social context plays an important role in whether and how LGBTQ individuals disclose their sexual identities and practices to key members of their social networks, particularly friends and family members.
Coming Out Experiences
Although there are a growing number of studies that explore the lived experiences of LGBTQ people in South Africa, there are still very few empirical studies examining the disclosure of one’s non-heterosexual sexual identity and practices to family members.
Letitia Smuts’ (2011) work has the most direct focus on coming out as LGBTQ in the South African context. Through an intersectional framework, her research examined lesbian experiences of coming out in Johannesburg and how social spaces and identities they occupy and embody impact their process of identity development (Smuts, 2011). In her study, Smuts applied Vivienne Cass’ coming out model-a model informed by Western LGB coming out experiences-to the South African context and offers theoretical contributions to Cass’ model.
This study explored diverse factors that influenced whether Black South African MSM disclosed their sexual practices and identity to their family, how their family responded, and how family responses affected them.
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Once LGB people disclose their sexuality to family members, their family may react in numerous ways that can be either affirming (i.e., accepting, supportive) or distressing (i.e., rejection, abuse) to the LGB person. According to Savin-Williams and Dube’s (1998) “Developmental Model of Parental Reactions”, parents, in particular, can react in six ways: shock, denial and isolation, anger, bargaining, depression, and acceptance.
Most participants disclosed their sexual identity to at least one person in their family or assumed their family knew despite no explicit disclosure about sexual identity; a significant minority had not disclosed. Families of those who disclosed were either supportive, in denial, confused or unsupportive in responses. Whether family was supportive or not, silence around the participants’ same-sex sexualities was prevalent within families. Family responses affected how participants perceived their sexuality and their confidence.
Model of Sexuality Disclosure to Family. Participants who had not disclosed their sexual identity or same-sex sexual practices to their family members had several reasons for not doing so. Many feared their family members would react negatively to this information.
Ongoing Efforts and Activism
There are many South African LGBTIQ activist groups, and annual Pride events are held in various cities across South Africa. LGBTIQ representation in pop culture is strong and relatively diverse.
The Academy of Science of South Africa announced the publication of a new study, Diversity in Human Sexuality: Implications for Policy in Africa. It was undertaken partly because those arguing in favor of criminalizing sexual and gender diversity have made explicit appeals to science. The study, which was undertaken in collaboration with the Uganda National Academy of Sciences, examines evidence that would provide answers to a set of critical questions related to gender diversity and human sexuality.
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South Africa is one of just a few countries in the world to be a member of the United Nations LGBTI Core Group.
Conversion Therapy: A new bill was introduced to prohibit Conversion therapy in children in 2021. Conversion therapy has a negative effect on the lives of LGBT people, and can lead to low self-esteem, depression and suicidal ideation.
Hate Crime Legislation: South Africa has no specific hate crime legislation; human rights organisations have criticised the South African police for failing to address the matter of bias-motivated crimes.
Despite progressive legislation and broad public support for the human rights of LGBTIQ people, there are still high levels of violence, including sexual assault and murder of LGBTIQ people.
Is South Africa really a beacon of LGBTQ+ rights? | DW News
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