Opinion article by Dr Claire Westman, Postdoctoral Researcher at the Free State Centre for Human Rights, University of the Free State.

---

The 10th of December marks International Human Rights Day, a day that commemorates the adoption of the Universal Declaration of Human Rights (UDHR) by the United Nations General Assembly in 1948. The UDHR “is the foundation of all international human rights law” and declares that human rights are inalienable and that all are equally entitled to human rights. South Africa has incorporated these notions of human rights into its Constitution by granting equality to all, with no distinction made based on race, gender, sexuality, etc. In fact, South Africa has specifically made mention of factors such as race, ethnicity, and sexual orientation because of the long history of discrimination experienced by black individuals and LGBTQI communities as a result of colonialism and apartheid. Section 9(3) of the Bill of Rights specifically protects the rights of LGBTQI individuals. The Constitutional Court of South Africa explains that the “explicit mentioning [of sexual orientation] gives our Bill of Rights a special place in the world: South Africa was the first country to enshrine gay rights in its Constitution and, in so doing, provide its citizens with constitutional protection from discrimination on the basis of their sexual orientation.”

While these rights are granted to LGBTQI individuals through the Constitution and the UDHR, it is clear that in the everyday lived experiences of LGBTQI individuals in South Africa, these rights are not respected nor guaranteed. In this context, rights for LGBTQI communities are secured vertically, through the Constitution and various other legal instruments; however, these are not guaranteed horizontally, despite section 9(4) of the Constitution, which says, “No person may unfairly discriminate directly or indirectly against anyone on one or more grounds in terms of subsection (3),” thereby aiming to guard against discrimination on the grounds of sexual orientation. 

In other words, despite the adoption of the universal mandates set out around equality through the UDHR and the corresponding mandates found in the South African Constitution, it is evident that LGBTQI persons face vast discrimination and violence in their daily lives in South Africa. Because of the discriminatory attitudes around homosexuality and diverse gender expressions, many LGBTQI individuals have difficulty accessing public resources, such as schooling, health care, and adequate police protection. Matshidiso, an LGBTQI activist speaking to ActionAid, explained that often in schools and clinics, lesbian women, for example, are labelled ‘males’. She states: “When I was 11, I [dropped out of] school, because the discrimination and homophobia was too much… We cannot access health institutions due to the attitude of nurses. They’re more interested in your sexual orientation than why you are sick or why you are there” (Matshidiso in ActionAid, n.d.). Matshidiso’s is only one story in a litany of reports of discrimination and harassment that LGBTQI individuals experience on a day-to-day basis, both within their communities and from those in services that should be available and accessible to all. 

Roché Kester (in Langat, 2021), director of the Gauteng LGBTI Desk, similarly claims that medical professionals, directly and indirectly, discriminate against LGBTI persons by misgendering individuals, breaking confidentiality at facilities, and asking intrusive questions. Luvuno, Ncama, and Mchunu (2019) further explain that transgender individuals experience health risks such as an increased risk of mental illness, substance abuse, and suicide, as well as an increased prevalence of HIV. Due to discrimination, which ranges from verbal abuse to the denial of care, many LGBTQI individuals are hesitant to visit healthcare providers and will often delay seeking health services. This is particularly concerning as LGBTQI individuals are often already in precarious socio-economic positions and exposed to high levels of violence, thereby positioning them as a markedly vulnerable sector of South African society.

However, because of the legal and constitutional rights afforded to LGBTQI persons, South Africa is considered to be ahead (in terms of legal recourse afforded to LGBTQI communities) of many other African nations (and nations more globally) where homosexuality is still criminalised. South African jurisprudence allows LGBTQI individuals to seek recourse for any violence or discrimination that they experience through the legal justice system. However, while this is again, exemplary on paper, in reality this system is flawed and often leads to members of LGBTQI communities facing further discrimination and revictimisation. A study carried out by Human Rights Watch (2011a & HRW, 2011b) indicated that of nearly 121 LGBTQI people that were interviewed, nearly all of them had been ridiculed, harassed, or experienced secondary victimisation when reporting incidents of physical or sexual violence to the police. In addition, many gay, lesbian, and transgender individuals who have reported cases of sexual or physical assault to the police have been met with incompetence and a failure to act. Aside from ridiculing survivors of such violence, police also often refuse to take statements and send survivors away, or when they do take cases, later claim that the dockets have been lost or were never filed to begin with. Such incompetence leaves these individuals “dangerously exposed to their attackers, who move about freely and terrorise them” (HRW, 2011a). Finally, the police are often complicit in committing crimes against members of sexual and gender minority groups. Interviewees in the above-mentioned HRW study explained that they had been raped, assaulted, and sexually harassed by members of the South African Police Service (SAPS). With the problematic attitudes towards LGBTQI individuals and the violence committed against them by members of the SAPS it is little wonder that LGBTQI individuals are reticent to report incidences of violence or to attempt to gain justice for the violence and/or discrimination they experience.

What is evident then is, despite the goals of the UDHR and the various legal and constitutional instruments in South Africa, LGBTQI people are denied many of the rights found in South Africa’s Bill of Rights, including but certainly not limited to: freedom “from all forms of violence from either public or private sources”; “not to be treated or punished in a cruel, inhuman or degrading way”; “access to healthcare services, including reproductive health care”; and the right to inherent human dignity where “everyone has […] the right to have their dignity respected and protected.” These clearly correspond with the basic human rights as outlined by the UDHR, again, including but not limited to: “the right to life, liberty and security of person”; freedom from “cruel, inhuman or degrading treatment”; being “equal before the law and entitled without discrimination to equal protection of the law”; and the “right to a standard of living adequate for health and well-being […] including medical care and necessary social services”. Consequently, it is evident that despite the human rights and equality afforded to members of LGBTQI communities on paper, these basic human rights are denied or constrained in their everyday lives and encounters, even with those who are employed by the state to enforce, maintain, and protect equality and freedom from violence and discrimination.

The State needs to be taking much more proactive measures to ensure that South African LGBTQI communities, some of the most marginalised and vulnerable members of our society, are ensured of their human rights, and are protected against the inordinate levels of violence and discrimination that they experience, particularly as it emanates from state institutions. Such violation of the human rights of a large portion of South African society clearly goes against the UDHR and serves as a threat to the very foundations of South Africa’s democratic ideals.