Home Affairs Minister Hlengiwe Mkhize is accused of “hiding behind … questionable provisions of the law” in refusing to call for the amendment of a section of the same-sex marriage Act that allows officials to refuse to marry same-sex couples on the grounds of religious or cultural beliefs.
In a parliamentary question to the minister in May, Congress of the People MP Deidre Carter asked whether, “given our constitutional order”, Mkhize supported the exemption given to marriage officers and, “if not, would she introduce amending legislation to repeal section 6” of the Civil Union Act.
Mkhize said 421 of the department’s 1 130 marriage officers were exempt from performing same-sex unions after having “objected on the grounds of conscience, religion or belief”.
“This is not a ministerial prerogative, but a provision of the law,” she said. “The Act is clear in that marriage officers will not be compelled to solemnise such unions.”
Matthew Clayton, from the lesbian, gay, bisexual, transgender, intersex, queer or questioning, asexual and other sexual and gender identities (LGBTIQA+) organisation Triangle Project, countered: “Changing the law is clearly the prerogative of the minister. Her response is a disappointing one, which shows a continued lack of willingness to deal with human rights abuses in the department.”
Mkhize said: “As can be imagined, we have a duty to protect the rights of all, including legal rights of workers, in this case, marriage officers.”
Sanja Bornman from Lawyers for Human Rights believed the exemption was absurd. “They are public servants of a secular state and personal politics and squeamishness must be left at the door when they enter the workplace. The ‘conscientious objector’ clause in the Act is clearly being abused at the expense of the human rights to dignity and equality the Act was intended to protect.”
Mkhize said that the department’s marriage process was redesigned after a joint task team was set up last year, made up of representatives of the department and various LGBTIQA+ organisations. The idea was to create a more streamlined and clear process, and to increase transparency and “clear accountability assigned in each step of the process”. It was meant to “promote responsibility of each marriage officer or official handling the marriage register, and the continuous promotion of responsible behaviour by the involved official”.
The department was improving on the enforcement of its anti-discrimination and diversity management policy, said the minister, adding that one of the skills development programmes officials took was “improving sensitivity on LGBTIQ rights”.
She said the department trained 407 officials in 2015-2016, an increase from 355 officials in 2014-2015.
The department has long been accused of discriminatory practices when it comes to the rights of LGBTIQA+ people.
In an attempt to redress this, the department under then home affairs minister Malusi Gigaba, introduced sensitisation workshops for its employees.
In a September 2016 interview with the Mail & Guardian, Gigaba said: “Home affairs is a department that used to classify people in order to discriminate. So a lot of those tendencies haven’t really left the department. [Through these sensitisation workshops] we hope, with time, to make people more open-minded, more sensitive, more willing to conduct same-sex marriages.”
But Igor Scheurkogel, a concerned citizen, has initiated an online petition to amend section 6.
“Sensitisation workshops are not a guarantee of acceptance, especially if it is written in the Act that they do not have to marry certain people. But we all pay taxes and should be able to access these services,” said Scheurkogel.
Gigaba had said reviewing some of the legislation was one of the topics the task team was dealing with.
In a statement released following Mkhize’s response, Carter said it was time to amend the Act “instead of hiding behind the current and questionable provisions of the law”.
Mkhize said: “A legislative amendment is not required in respect of the Civil Union Act. In discussions with the department, what the LGBTIQ leaders had requested was clarity on the offices where marriages may be solemnised with dignity. This was to assist the LGBTIQ community to select appropriate offices. What this does mean is that we get to know in advance which objections from marriage officers were approved, on their merit, in advance, to plan better.”
Mkhize said the department was “committed to strengthening and sustaining our partnership with LGBTIQ stakeholders”.
“The assumption that government will, on its own, transform society is at best misleading,” said Mkhize.
“We invite all role players to come forward, sans antagonism, to engage with us on these matters of importance. Questions of identity, nation-building and imperatives to promote unity in diversity are never resolved overnight,” she said.
Clayton said: “For her to suggest that those who are campaigning for equal rights should do so ‘sans antagonism’ and not think change will come ‘overnight’ is insensitive and ahistorical.”
Lerato Phalakatshela of OUT Well-being and a member of the national joint task team, said the minister’s response was “a bit biased, as she appears to be protecting people who should be providing services to everybody in South Africa. As much as she wants to protect the rights of people working at home affairs, she is, in doing that, doing an injustice to others. Civil servants should put their jobs first when serving the country’s citizens.”
Scheurkogel added: “Our call is not an attack on anyone’s religion. All we are saying is that, if you are a state employee, you have to serve everyone regardless of their sexual orientation or identity.”
Carl Collison is the Other Foundation’s Rainbow Fellow at the Mail & Guardian.