Around the world, adverse health outcomes are not only about individual predisposition or genetics, but also about the oppressive systems that established racial hierarchies. These continue to enable social discrimination and perpetuate health inequalities, even beyond formal colonial structures.

It is acknowledging and working with these differences, rather than dismissing and ignoring them, that sets people on a path to true and substantive equality, according to Dr Tlaleng Mofokeng, the United Nations (UN) special rapporteur on the right to health.

“As a black African woman myself, who embodies much of the discrimination we speak of, I understand that people are not inherently vulnerable, but that these vulnerabilities are rather brought by the obstacles they face in the social, economic and political contexts in which they live,” she said. “The starting point of millions of people around the globe is unequal.”

Dr Tlaleng Mofokeng, United Nations special rapporteur on the right to health, and Professor Sandra Liebenberg, HF Oppenheimer Chair in Human Rights Law, at the 17th Annual Human Rights Lecture at Stellenbosch University on 22 March 2023. (Photo: Tamsin Meterlerkamp)

Mofokeng was speaking at the 17th Annual Human Rights Lecture, hosted at Stellenbosch University on Wednesday, 22 March. The focus of the lecture was the issue of “Who Believes Black Women? Applying the Right to Health Framework to Undo Epistemic Injustice”.

The lecture followed Human Rights Day on 21 March – an observance that commemorates the Sharpeville Massacre of 21 March 1960, when the apartheid police shot and killed 69 people taking part in a peaceful protest march against discriminatory pass laws.

Epistemic injustice

Mofokeng reflected on her own medical career in South Africa, including time spent as the resident medical officer at a clinic on the West Rand in Johannesburg. She noted that many young people were reluctant to enter the clinic, because it did not feel like a space in which they could have open conversations about their bodies, without judgement.

In her role as a special rapporteur, Mofokeng presented a report to the UN General Assembly in 2022, focusing on the right to health and the impact of racism on human dignity, life, equality and the right to control one’s health and body. The report was led by the theme of epistemic injustice.

“Epistemic injustice is when someone’s knowledge or experience is not taken seriously or considered credible on the basis of an analysis of power and associated stereotypes,” explained Mofokeng. “This injustice has permeated and been applied in the context of healthcare – for example, in anthropology, eugenics, clinical history-taking, and perverted ideas about how black people do not feel pain… and thus are not deemed as credible as patients.”

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Mofokeng highlighted the experience of epistemic injustice in health for black women. Speaking on the intersection of sport and health, she condemned sport governing bodies that regulated women’s participation in sport through “sex testing” – practices that violated “fundamental rights to privacy and dignity”.

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“Through their policies, sport governing bodies have created environments that coerce some women into invasive and unnecessary medical interventions as a condition to compete in certain events, and sports officials have engaged in vitriolic public criticism that has ruined careers and lives. Women from the so-called Global South have been disproportionately affected,” she said.

“Women perceived to be ‘too masculine’ have become targets of suspicion and gossip, and their careers ended prematurely. The standards of femininity applied are often deeply racially biased and premised on harmful stereotypes.”

The case of Caster Semenya, a South African runner disqualified by the International Association of Athletics Federations – now known as World Athletics – because her testosterone levels were declared to be too high, sparked global outrage over the practice of sex-testing women athletes, continued Mofokeng. Semenya’s attempt to appeal against the decision in the Court of Arbitration for Sport was dismissed.

“No one believes this black woman. She had to go to the European Court of Human Rights in yet another attempt to be heard,” said Mofokeng, adding that the court’s judgment in this matter was still pending.

“She is Mokgadi Caster Semenya. She is a woman and she is fast, and I believe her.”

Undoing epistemic injustice

Mofokeng spoke about the long road to having sex work decriminalised in South Africa, and how the voices of black women sex workers often went unheard during attempts to have the industry decriminalised. This is despite the fact that criminalisation curtailed the rights of sex workers, and left them vulnerable to violence.

“But not all is lost. On 30 November 2022, Cabinet approved the publishing of the Criminal Law (Sexual Offences and Related Matters) Amendment Bill regarding the decriminalisation of sex work for public comment,” said Mofokeng. “The bill… will effectively decriminalise the sale and purchase of adult sexual services.”

As the UN special rapporteur for health, Mofokeng made a submission to Parliament welcoming the positive developments aimed at decriminalising sex work in South Africa.

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“I also asserted… that violence is a major obstacle in the realisation of the right to health, including sexual and reproductive health rights, adding that structural violence – which is a form of violence normalised through laws, policies or institutional practices – creates unjust barriers that are socially and systematically designed to marginalise individuals… and populations across the race, class and gender divide,” she said.

Mofokeng described the South African government’s efforts to decriminalise sex work as an “undoing of epistemic injustice”, where the law was shifting from being an “enabler of violence to a protector of rights”.

The principle of substantive equality underscored the need to ensure true equality in outcomes, she continued. To achieve this, systems needed to be put in place that ensured equal access to opportunities and services, and that people could access them in a manner that met their unique needs.

“We therefore have a role to play, in all our little corners but also collectively, in the realisation of all human rights and in that respect for human rights,” she said. “Human rights are universal, indivisible, interdependent, interrelated and mutually reinforcing.” DM/MC