Last week, the United Nations Human Rights Council adopted a resolution to create an independent expert on sexual orientation and gender identity. The expert will monitor the implementation of international human rights laws, facilitate dialogue and enable more systemic support by the UN system to address violence and discrimination based on sexual orientation and gender identity.
In a sorry tale of misapplied ABC (Abstinence, Be faithful, use a Condom) policy, South Africa chose to abstain from voting in support of this crucial resolution despite prior indications to the contrary.
When it comes to matters of sexual politics, abstinence is usually unsatisfactory. South Africa should rather be faithful to a constitutionally aligned position on sexual orientation and gender identity (Sogi), particularly as it led an unprecedented UN resolution on this issue in 2011. When voting on a follow-up resolution in 2014, Abdul Samad Minty, then UN ambassador, invoked its alignment with the Constitution in that “South Africa believes that no one should be subjected to discrimination or violence based on their sexual orientation or gender identity”.
In May this year, Deputy Minister of Justice and Constitutional Development John Jeffery gave the keynote address at the Pan African International Lesbian, Gay, Bisexual, Trans and Intersex Association’s conference held in Johannesburg. He underscored the “groundbreaking developments in our region and our continent on sexual orientation”. Drawing attention to South Africa’s role in these processes, Jeffery affirmed that: “Every step in preventing Sogi discrimination and prejudice is ground-breaking. The world is slowly changing and we are moving forward.”
Yet a few weeks later, South Africa’s new ambassador to the UN abstained from a resolution that, in mandating an independent sexual orientation and gender identity expert, would build on and strengthen the previous two resolutions our country has endorsed.
In tabling the abstention, ambassador Nozipho Mxakato-Diseko started off by affirming the constitutional mandate: “For South Africa, respect for the promotion, protection and fulfilment of human rights and fundamental freedoms enshrined in our Constitution constitutes a critical pillar of our foreign policy.” Then she stated that: “Guided by this conviction, South Africa tabled the original resolution on Sogi and on the LGBTI [lesbian, gay, bisexual, trans and intersex] issue in 2011.” But abstinence is frustrating and can be undiplomatic. Mxakato-Diseko cited South Africa’s reasons for abstaining as the “recklessness”, “grandstanding” and “arrogant and confrontational approach adopted” by the Latin American states that led the resolution.
She sounded a caution: “There is an African proverb that says: ‘If you want to walk fast, then walk alone. If you want to walk far, walk together with others’.” So, from a department of justice that, just weeks prior, had stressed the importance of moving forward on sexual orientation and gender identity, we now have a department of international relations that’s far keener on slowing down the walk to freedom for LGBTI people.
This kind of abstinence isn’t a case of playing it safe. Rather, it exposes deep disjunctures that have more to do with principle than pace. It also reflects a lack of transparency and coherence on sexuality and gender rights, which weakens South Africa’s commitments to upholding them.
A number of the 628 nongovernmental organisations that had made a public call for the independent expert were from South Africa. Despite unprecedented transnational mobilisation against discrimination, sexual and gender rights are often bartered in international negotiations, which themselves are implicated in the maintenance of unequal power arrangements.
LGBTI rights are frequently deployed in expedient ways to shore up political legitimacy on both national and international fronts. We see this from states that use the defence of LGBTI people to legitimise their own oppressive practices, such as pinkwashing in Israel, European anti-immigration policies, and the US’s so-called war on terror.
This expediency is also evidenced by autocratic leaders who mobilise against sexual and gender rights to gain popularity and domestic credibility, and to deflect attention from local democratic pressures, for example in Uganda and Russia.
Although international human rights mechanisms are important to hold state power to account and defend against its violent and exclusionary tendencies, human rights are often played in these spaces. Misalignments between South Africa’s national and international positions on sexual orientation and gender identity suggest a dangerous double game. This is probably linked to the country’s regional positioning and associated political interests that, although they needn’t, frequently compromise our consistency on human rights.
The rights and justice principles in the Constitution mandate the terms for how leaders are to govern, both inside and outside our borders. As a consequence, retrogressive and contradictory stances on sexual orientation and gender identity must be accounted for. Leaders who determine the pace and content of sexual and gender politics in ways that undermine constitutional rights and protections are, in the words of Mxakato-Diseko herself, guilty of arrogance and recklessness.
Melanie Judge is an adjunct associate professor at the Centre for Law and Society in the faculty of law at the University of Cape Town, and a trustee of the Gay and Lesbian Memory in Action. The views expressed are her own