Who we are may no longer be illegal, but that doesn't mean there's enough legislation to ensure total equality. By Karabo Morake
Since the South African Constitutional Dispensation in 1993 leading up to the final Constitution of the Republic of South Africa Act 108 of 1996, it has been clear that homosexuality is indeed legal and constitutional in our country.
One of my campaigns as the current Mr. Gay World Southern Africa 2017 and representative for Mr. Gay World 2018 is bringing about awareness of our laws in South Africa and how they are applied to gay people.
Section 9 sub-section (1), of the Constitution stipulates that everyone is equal before the law, and that everyone has equal protection and benefits by the law. It furthermore reads that the state may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth.
But there is a lot of road left to track when it comes to fully applying this part of the Constitution. We do not have enough legislation in South Africa to protect gay or gender non-conforming people, even though our sexuality is not illegal.
Of course, there is the Civil Union Act 17 of 2006 which legalised same-sex marriages, allowing two people regardless of their gender to form either a marriage or a civil partnership. But, apart from Human Rights and Fundamental Rights, with more than 20 years of the Constitutional dispensation legislation there has been rather limited legislation for Lesbians, Gays, Bisexuals, Transgender, Queer or Questioning and Intersex individuals.
For example, an incident at my workplace brought my attention to labour laws. An employee who identifies as gay but chose to dress in women’s fashion dealt with a lot of challenges when it came to his appearance. He was often forced, compelled or threatened to change the way he dressed to be more acceptable to “society” and the “workplace” he was in.
It didn’t matter how brilliant he was at his job, the way he chose to express himself by wearing more effeminate clothing, and by implication the expression of his sexual orientation, was a problem to his employers. Again, this had nothing to do with his work ethic or ability.
It made me think about how often it must happen that individuals resign from their workplace because they are made to feel uncomfortable and unaccepted for the way they identify, just like this person did.
It is here that many gay people do not always know their rights, and their rights will likely also be very hazy as our labour laws were not written whilst properly considering gender.
The Basic Conditions of Employment Act 75 of 1997 as well as the Labour Relations Act 66 of 1995 does not cater for gay people. The legislation does not acknowledge any gender other than male or female and simply groups everyone together according to that.
This Act regulates labour practices and sets out the rights and duties of employers and employees aimed at ensuring social justice with basic standards of employment. It also encompasses annual leave, sick leave, maternity leave, and family responsibility leave, etc.
These laws were drafted and written in such a manner that it would be applicable to heterosexuals and it entirely disregards other groups of diverse people.
For example when a gay couple has a new-born baby, one would ask how paternity leave is regulated. Currently, when a heterosexual couple has a child the mother is entitled to 4 months maternity leave and the father receives 3 to 4 days that falls under family responsibility leave.
Now, when it is a gay or lesbian couple there might be some questions as to who is allowed what leave. Often employers have discretion in such cases, which in my opinion violates section 9 of the Constitution that stipulates equality and non-discrimination against gay people. It should not be left up to the whims of an employer to make these decisions.
The fact is that very little legislation protects the rights of gay people. I believe that it is time we seriously consider having an LGBTQI+ Act in place that would cover all rights and limitations as well as sanctions for violating any of our basic human rights as entrenched in the Constitution.
As part of my work as Mr. Gay World Southern Africa 2017 I drafted a basic employment regulations guide that is an exercise which aspires to work towards equal treatment in the workplace for all gay men and women.
Let us all be aware of our rights but also of those laws that do not yet fully recognise the complexities of gender in our Rainbow Nation. I hope to one day play a part to ensure that an Act to regulate gay rights in all aspects of the law is born as I continue to on my life journey.