Ten years ago, sex between consenting adult men was illegal. Lesbian and gay people were, despite the promise of our Constitution, without practical defence or protection in or even from the law. Much has changed since then.
The relative legal equality achieved for lesbian and gay people in South Africa is celebrated throughout most of the world. But many things have also remained the same. Lesbian and gay people remain, as a group, on the margins of society. They constantly face the intersection of sexual orientation discrimination with, among other things, poverty, social and political exclusion and a lack of access to public services.
Black lesbian and gay people further face the double-edged sword of racism within lesbian and gay communities on the one hand and the accusation of un-Africanism on the other.
In the upcoming election, lesbian and gay voters are faced with a difficult choice.
The African National Congress government claims 10 years of work toward securing rights for lesbian and gay people in South Africa. This claim is not without foundation.
The ANC in Parliament has done much to accommodate the rights of lesbian and gay people. During the past 10 years, Parliament legislated on sexual orientation in 30 items of legislation. This legislation includes recognising same-sex relationships in the Domestic Violence Act, recognising the oppression of lesbian and gay people in the Refugee Act and the right to parenting in the Human Tissues Act (Artificial Insemination).
ANC members of government have, however, appeared less willing to support sexual orientation rights.
The Cabinet opposed most applications brought by lesbian and gay activists to secure their rights. This includes very basic rights such as the right for adult consenting men to engage legally in sexual relations with each other.
There were notable exceptions. The minister of finance settled the lawsuit between the Lesbian and Gay Equality Project and himself over the issue of same-sex partner benefits within the public service. The minister of social development did not oppose the application on same sex co-adoption. In general, however, it is true that the government, as opposed to the legislature, opposed actions seeking equality for lesbian and gay people.
The most plausible reason for this apparent contradiction is that the intricacies of legislating go widely unreported. Decisions of the government, however — in particular those relating to sexual orientation — are always widely reported.
It would seem that the ANC is willing to support equality for lesbian and gay people as long as it can be done in a quiet, out-of-the-way manner. This apparent attitude is reflected in the ANC election lists. Lesbian and gay people are prominent within the ANC-Congress of South African Trade Unions-South African Communist Party alliance, yet we never find the names of any out lesbian and gay people on ANC lists.
The usual response of the ANC is that it doesn’t ask its candidates to declare their sexual orientation. Unfortunately, this is not a good enough answer. Lesbian and gay people were actively excluded from equal political participation in the past and the ANC has a responsibility to reflect that in their party list nominations.
Sadly, the official opposition provides no perfect alternative for the lesbian or gay voter. The Democratic Alliance may have one out gay MP, but this in itself means nothing. The DA itself has a track record of schisms over lesbian and gay issues.
There are those for and against sexual orientation rights in the DA. The opponents of sexual orientation rights are usually prepared to voice their opinions loudest. Also, the DA has never taken an official position on the rights of lesbian and gay people by way of a resolution at a party congress.
But more profound than all of this, the greatest difficulty with the DA is its failure to rise above a narrow, neo-liberal understanding of the rights of lesbian and gay people. An understanding of sexual orientation rights that is founded on the protection of minority rights has the very real danger of characterising lesbian and gay people as being in ‘opposition” to society at large.
Despite the advances made in the past decade, much work still needs to be done in securing full legal and social equality for lesbian and gay people. Lesbian and gay voters should take this into account when casting their ballot. We should cast our vote in a manner that will contribute to lesbian and gay people becoming an important factor in governments’ ongoing process of weighing up competing views.
Evert Knoesen is the director of the Lesbian and Gay Equality Project in South Africa