LGBTI Policy in SA

I was asked last week about South African LGBTI policy by a Dutch college. This got me thinking - we have constitutional protections for sexual orientation but there is no specific LGBTI policy.

Chapter 2, Section 9 (Bill of Rights) of our Constitution reads: the right to equality before the law and freedom from discrimination. Prohibited grounds of discrimination include race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth.

Based on this clause in the constitution, laws have had to made or altered to be sensitive to those rights e.g. two years after the Constitution was passed in 1996 the Constitutional Court ruled that the law which prohibited homosexual conduct between consenting adults in private, violated the Constitution.

In 1998, Parliament passed the Employment Equity Act. The law protects South Africans from unfair labour discrimination on the basis of sexual orientation, among many other categories. In 2000, similar protections were extended to public accommodations and services with the approval of the Promotion of Equality and Prevention of Unfair Discrimination Act.

In December 2005, the Constitutional Court ruled that it was unconstitutional to prevent people of the same gender from marrying when it was permitted to people of opposite gender, and gave the South African Parliament one year to allow same-sex unions. In November 2006, Parliament voted 230:41 for a bill allowing same-sex civil marriage, as well as civil unions for unmarried opposite-sex and same-sex couples. However, civil servants and clergy can refuse to solemnize same-sex unions.

In summary, there is no one specific LGBTI policy as freedom from discrimination and equality before the law is grouped in one large group as listed in the extract from the Constitution above.  Interestingly though, polices relating to others on the list e.g. gender exist, however LGBTI-specific policy has been left in the cold. More than a year ago the Department of Justice set up the (failed) “Gender and Sexual Orientation based Violence Task Team” which was tasked with developing a "legislative intervention plan", this however has never materialised.

This poses an interesting question: should South Africa have a LGBTI-specfic policy, and if so what should it include?