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24 November 2017 05:50 (South Africa)
Opinionista Pierre de Vos

LGBTI: SA needs to deliver rights promised in Constitution

  • Pierre de Vos
    Pierre de vos
    Pierre de Vos

    Pierre De Vos teaches Constitutional law at the University of Cape Town Law Faculty, where he serves as deputy dean and as the Claude Leon Foundation Chair in Constitutional Governance. He writes a regular blog, entitled 'Constitutionally Speaking', in which he attempts to mix one part righteous anger, one part cold legal reasoning and one part irreverence to help keep South Africans informed about Constitutional and other legal developments related to the democracy.

It is often said that South Africa has one of the best and most progressive Constitutions in the world. But there is a huge gap between the constitutional promise of creating a society in which every person counts equally, and the lived reality of many citizens. For many gay men, lesbians, bisexual, transgender and intersex (LGBTI) people the right to equal dignity promised by the Constitution remains elusive. This is why the work done by LGBTI organisations like Triangle Project remains so important. But the continued existence of this organisation is hanging in the balance and without help from fellow South Africans it may not survive.

Several years ago I spent an eye-opening Saturday in Atlantis with a group of gay men, lesbians, and transgender young adults, conducting a workshop on human rights.

Atlantis is a town created by apartheid social engineers to house people classified as “coloured”. The town is purposely situated far away from the city centre of Cape Town in line with apartheid geographical design. The majority of young adults attending the workshop in Atlantis were unemployed. Some had been thrown out of their homes by their parents when their sexual identity became know. Others lost their employment because of their sexual orientation.

The workshop was nevertheless a festive affair. The gay men, lesbians, and transgender attendees were feisty, outspoken, dignified, mischievous; in short they were fabulous.

I was having a great time talking with participants about the constitutional prohibition on discrimination on the grounds of sexual orientation and the many groundbreaking judgments of the Constitutional Court in which the equal dignity of all gay men, lesbians, bisexuals, transgender and intersex persons have been affirmed. I quoted the ringing words of former Justice Albie Sachs who wrote in the very first judgment on sexual orientation discrimination:“The acknowledgment and acceptance of difference is particularly important in our country where group membership has been the basis of express advantage and disadvantage … The concept of sexual deviance needs to be reviewed. A heterosexual norm was established, gays were labelled deviant from the norm and difference was located in them. What the Constitution requires is that the law and public institutions acknowledge the variability of human beings and affirm the equal respect and concern that should be shown to all as they are. At the very least, what is statistically normal ceases to be the basis for establishing what is legally normative.”

The idea that we should move away from the belief that heterosexuality is normal and same-sex love and desire is not, is, in its way, a revolutionary one. It challenges the deeply entrenched beliefs and prejudices of the majority of South Africans and call us to think differently about difference.

But as we proceeded to discuss the Equality Act and the impressive mechanisms it created to challenge discrimination on the basis of race, sex, gender and sexual orientation – in both the public and the private sphere – a young man raised his hand while shaking his head.

You are not serious,” he said with something between a smirk and a snigger. “You really think if I go to the Magistrate’s Court to report the fact that I have been discriminated against anyone is going to attend to my case? Get real!”

A murmur of agreement ran through the group. Several participants nodded approvingly.

When I was raped last year,” the young man continued, “and I tried to report it to the local police, I was chased away. ‘Fokof, you moffie,’ the police officer shouted at me while his colleagues taunted me and laughed in my face. They all thought it was a joke. ‘Julle moffies kan mos nie gerape word nie want julle soek daarvoor’ (‘You faggots cannot be raped because you are looking for it’), the policeman told me.”

The young man had provided a horrific example of the gap between the promise of equal dignity contained in the Constitution and ostensibly given effect to in the Equality Act, and the lived reality of many individuals.

Of course this gap is not only present as far as the rights of members of the various LGBTI communities are concerned. Racism and sexism continue to make the lives of some more difficult than others in South Africa while economic inequality robs many people of the opportunity to reach their full potential. For some, the hurdles are even more daunting because they are not only members of an LGBTI community but also female, black or poor.

The Constitution and the laws passed to give effect to some of its clauses cannot magically change the intolerant attitudes, the deeply ingrained prejudices, the fear and the hatred that some people harbour against others because of their race, their sex, their gender, their sexual orientation or their economic status. Much more is needed than the mere passing of laws to begin to create a world in which we can all feel safe and equally valued – regardless of our race, our sex, our gender or our sexual orientation.

Ideally our government should ensure that gay men, lesbians, bisexual, transgender and intersex persons are protected from the emotional and physical harm visited upon us by those whose fear, ignorance and hatred drive them to inflict vicious verbal and physical harm on some of us.

But because government departments and institutions are staffed by ordinary citizens who sometimes harbour the same prejudices and hatred that is prevalent in the larger community, it is not easy to transform the deeply-rooted prejudices of some police officers, home affairs officials and other government officials.

Moreover, while our government has adopted progressive policies on LGBTI rights, the fact that the LGBTI community is not a politically powerful or influential one, means there is not always a great desire to implement these policies vigorously and consistently in all spheres of government.

It is for this reason that civil society organisations play a pivotal role in helping to  protect members of the various LGBTI communities from harm. It is also for this reason that civil society organisations are of the utmost importance to engage in advocacy work and grassroots mobilisation aimed at bringing lasting change in our society.

The Triangle Project is one of the civil society organisations that has done this kind of work over the more than 20 years of its existence. It supports gay men, lesbians, transgender, bisexual and intersex people who are victims of hate crimes. It helps individuals to come to terms with their sexuality. It engages in advocacy work to ensure government policies are implemented vigorously. It works to change the attitudes of state officials and to make them aware of their constitutional responsibilities.

It is for this reason that I continue to serve on the Board of the Triangle Project. But because of both management challenges and a difficult fundraising environment, the organisation will soon run out of money to run the many projects in which it is involved.

I have never before used this platform to exhort readers (well, those with the financial means, at least) to donate money to any cause. But because I believe passionately in the work done by the Triangle Project and because I am acutely aware of the severe need for such an organisation and the importance of its work for the creation of a society in which the equal dignity of everyone is protected, I am today making a plea for you, dear reader, to donate money to the Triangle Project.

It’s as simple as logging on to the website and clicking on the “Donate Now” button.

If you cannot donate money, maybe you can donate some of your time and your expertise to the work done by the project? Why not host your own fundraiser, donate a piece of art (if you’re an artist), “donate” a space in which to host a fundraising dinner – the possibilities are endless. Get in touch with Matt at Triangle to coordinate. To learn more about the work done by Triangle Project you can also go to the Triangle Project website. DM

  • Pierre de Vos
    Pierre de vos
    Pierre de Vos

    Pierre De Vos teaches Constitutional law at the University of Cape Town Law Faculty, where he serves as deputy dean and as the Claude Leon Foundation Chair in Constitutional Governance. He writes a regular blog, entitled 'Constitutionally Speaking', in which he attempts to mix one part righteous anger, one part cold legal reasoning and one part irreverence to help keep South Africans informed about Constitutional and other legal developments related to the democracy.

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