Historically, South Africa’s movement for lesbian, bisexual, transgender, and intersex (LBTI) rights occurred within the context of and in relation to broader social movements, including, most notably, the movement to end apartheid. Violence and discrimination against LBTI individuals takes place within the context of extreme gender-based violence in South Africa.
Consensual same-sex conduct was decriminalised in 1998 in the National Coalition for Gay and Lesbian Equality v Minister of Justice case. Common-law sodomy crimes “commission of an unnatural sexual act”, as well as Section 20A of the Sexual Offences Act, were held unconstitutional.
Same-sex unions have been recognised as legal under the Civil Union Act, 2006. The decision of the Constitutional Court in the case of Minister of Home Affairs v Fourie on 1 December 2005 extended the common-law definition of marriage to include same-sex spouses as the Constitution of South Africa guarantees equal protection before the law to all citizens regardless of sexual orientation.
South Africa protects its LBTI people from discrimination and hate crimes; Section 9 of the Constitution forbids discrimination on the basis of sex, gender or sexual orientation.
Transgender people have gained legal recognition through the Alteration of Sex Description and Sex Status Act 2003 that allows people to apply to have their sex status altered in the population registry, and consequently to receive identity documents and passports indicating their gender identity. The law requires the person to have undergone medical or surgical treatment, such as hormone replacement therapy (sex reassignment surgery is not required).
The Act recognises intersex people and prohibits discrimination against them; however, it does not protect their physical integrity and bodily autonomy.
The CEDAW Committee provided SOGIESC-specific recommendations to South Africa at the 48th Session. The Committee noted that there were several reported cases of sexual offences and murder as well as “corrective rapes” of lesbians. The Committee recommended that the State party abide by its constitutional provisions and provide effective protection from violence and discrimination, through the enactment of a comprehensive anti-discrimination legislation that centres SOGIESC rights, and that the State party continues to raise awareness through campaigns on these issues.
The last submitted State party report was in 2018 and mentioned how the government has public education initiatives and utilises a combination of various communication platforms such as media, public exhibitions, educational and government websites to promote the rights of women, children, older persons, persons with disabilities, the Lesbian, Gay, Bisexual, Transgender and Intersex (LGBTI) community and other marginalised groups. These initiatives are a means to reach out to communities in an effort to raise awareness on legal recourse and redress measures available.
The List of Issues from 2020 for South Africa has LBTI-inclusive questions that use an intersectional lens. The questions asked were about whether any initiative and programmes exist to tackle sexual offences against lesbian women and girls, and how, if at all, the reported cases of murder of lesbian women have been investigated and addressed by the criminal justice system. The Committee also asked to provide disaggregated statistical data on women facing violence based on their gender, sex and sexual orientation.
In the 80th Session, the CEDAW Committee strengthened its previous recommendations. It welcomed progress through ‘The National Intervention Strategy for Lesbian, Gay, Bisexual, Transgender and Intersex (LGBTI) Sector’, which is aimed at responding to and preventing gender-based violence against LGBTI persons, in 2014. But it indicated concern regarding the particularly high risk of gender-based violence against women and girls facing intersecting forms of discrimination, such as lesbian, bisexual and transgender women and intersex persons, refugee women, women with disabilities and women and girls with albinism.
The Committee also urged that the State party to raise awareness of women’s human rights among traditional and community leaders and the general public, with the active participation of women’s organisations and women human rights defenders, and on the specific risk of gender-based violence for women and girls facing intersecting forms of discrimination, such as lesbian, bisexual and transgender women; migrant, refugee and asylum-seeking women; women living with disabilities; and women and girls with albinism. It also recommended that the State party raise awareness amongst women, including women belonging to ethnic minorities, women with disabilities, migrant women, and lesbian, bisexual and transgender women, about the legal remedies available to them in the event of discrimination.
Lastly the Committee spoke about the LBTI communities as ‘Disadvantaged groups of women’. The Committee noted with concern that information received on the situation of women and girls facing intersecting forms of discrimination, including lesbian, bisexual and transgender women and intersex persons, migrant, refugee and asylum-seeking women, women living with HIV/AIDS, women with disabilities and women with albinism, and the lack of data on measures taken by the State party to comply with its due diligence obligation to prevent and protect these women from gender-based violence. The Committee recommended that the State party provide information in its next periodic report on the situation of women facing intersecting forms of discrimination, including lesbian, bisexual and transgender women and intersex persons, migrant, refugee and asylum-seeking women, women living with HIV/AIDS, women with disabilities and women with albinism, and on measures taken to address such discrimination.