The fact that only 28% of home affairs officials are willing to marry same-sex couples has been met with “shock and disappointment” by LGBTI activists.
“We were really not expecting the figure to be this low. We are shocked and really disappointed,” said Lerato Phalakatshela, hate crimes manager at OUT Well-Being, of the statistic, originally reported by the website MambaOnline.
The Civil Union Act of 2006 allows for marriage officers not to marry same-sex couples “on the grounds of conscience, religion and belief”.
The list of home affairs offices at which same-sex couples could be married was made available after Malusi Gigaba, the minister of home affairs, met with LGBTI (lesbian, gay, bisexual and transsexual) activists. A task team – made up of LGBTI representatives and representatives from the department and established to look at ways of addressing the issues faced by LGBTI people at home affairs offices – decided to have this list of offices complied and released, “to ensure proper and dignified solemnisation of all marriages”.
Although making this list available would come as welcome news to same-sex couples planning on getting married at one of the country’s 409 home affairs offices, the fact that only 117 of these have officials willing to marry them is, according to Joshua Sehoole, “really ridiculous” and “a huge injustice”.
Sehoole, regional human rights officer for the organisation Iranti, and member of the task team, said: “When it comes to state employees who are employed with public funds – with taxpayers’ money – extending conscientious objection to them in the execution of their public duties is essentially government-sanctioned discrimination. Because when you’re in a public office, you should be providing services to everybody, without discrimination of any kind – regardless of the person’s gender or sexual orientation. That’s what our constitutional ideals are and the Act, as it currently stands, does not live up to those ideals. It’s ill formed.”
Sehoole added: “When religious freedoms start to encroach on another person’s rights, that is where you’ve got to draw the line. We know that there’s a gap between our legislative framework and the feelings of people on the ground. In this kind of case, though, government has an even bigger obligation to ensure that, structurally, it does not allow for that kind of discrimination.”
Although welcoming the release of the list of home affairs offices at which same-sex couples could be married, Sehoole added: “Getting the list out is one thing, but following on from this we have to try and ensure that at every home affairs office there is an official willing to marry same-sex couples. But even this is really just treating the symptoms of a deeper-rooted problem that needs legal reform. We made it clear, from the offset, that one of the things we wanted was legal redress and to make a joint submission to the department of justice around what needs to be looked at.”
Phalakatshela, who is also a member of the task team, added that the minister had “assured us that this section of the Act could be something to debated and possibly amended”.
In a statement released by the minister, he spoke of being open to “reviewing relevant legislation to address identified gaps” and added: “On the whole, we are on course, trusting that the task team will take us to the envisaged goal of fair treatment, equality and justice for all — irrespective of sexual or gender orientation.”
Carl Collison is the Other Foundation’s Rainbow fellow at the Mail & Guardian.