LGBT rights in South Africa

==LGBT history in South Africa==
{{See also|Timeline of LGBT history in South Africa}}
Homosexuality and same-sex relations have been documented among various modern-day South African groups. In the 18th century, the [[Khoikhoi]] people recognised the terms {{lang|naq|koetsire}}, which refers to a man who is sexually receptive to another man, and {{lang|naq|soregus}}, which refers to same-sex masturbation usually among friends.<ref>{{Cite book |url=https://www.worldcat.org/oclc/39052346 |title=Boy-wives and female husbands : studies in African homosexualities |date=1998 |others=Stephen O. Murray, Will Roscoe, Bradley Rose, Will Roscoe |isbn=0-312-21216-X |edition=First |location=New York |oclc=39052346}}</ref> Anal intercourse and sexual relations between women also occurred, though more rarely. The [[Bantu peoples]], most notably the [[Zulu people|Zulu]],<ref name="Wilhelm 2004"/> [[Basotho]],<ref name="Epprecht 2003"/> [[Mpondo people|Mpondo]] and [[Tsonga people]], had a tradition of young men ({{lang|zu|inkotshane}} in [[Zulu language|Zulu]],<ref name="Wilhelm 2004"/> {{lang|st|boukonchana}} in [[Sotho language|Sesotho]],<ref name="Epprecht 2003">Marc Epprecht, ''Hungochani, Second Edition: The History of a Dissident Sexuality'' (2003, {{ISBN|0773588787 }}) page 3</ref> ''tinkonkana'' in Mpondo, and {{lang|ts|nkhonsthana}} in [[Tsonga language|Tsonga]], also known as "boy-wives" in English) who typically dressed as women (even wearing fake breasts), performed chores associated with women, such as cooking and fetching water and firewood, and had [[intercrural sex]] with their older husbands (''numa'' in Ndebele and Sesotho, and ''nima'' in Mpondo and Tsonga).<ref name="Wilhelm 2004">Amara Das Wilhelm, ''Tritiya-Prakriti: People of the Third Sex'' (2004, {{ISBN|145008057X}}), page 230</ref> In addition, they were not allowed to grow beards,<ref name="Wilhelm 2004"/> and sometimes they were not allowed to ejaculate. Upon reaching manhood, the relationship would be dissolved, and the boy-wife could take an ''inkotshane'' of his own if he so desired.<ref name="Wilhelm 2004"/><ref>{{Cite web|url=http://www.willsworld.org/africa.html|title=Boy-Wives and Female Husbands|website=www.willsworld.org}}</ref> These relationships, also known as "mine marriages"<ref name="Epprecht 2003"/> as they were common among [[Mining industry of South Africa|miners]], continued well into the 1950s.<ref>{{cite news|url=https://www.theguardian.com/commentisfree/2014/mar/08/african-homosexuality-colonial-import-myth|title=The idea that African homosexuality was a colonial import is a myth|newspaper=The Guardian|date=8 March 2014|last1=Evaristo|first1=Bernardine}}</ref> They are usually discussed as homosexual relationships, though sometimes the boy-wives are discussed in the context of transgender experiences.<ref>Chantal Zabus, David Coad, ''Transgender Experience: Place, Ethnicity, and Visibility'' (2013, {{ISBN|1135135975}}), page 163</ref><ref>G. G. Bolich, ''Transgender History & Geography: Crossdressing in Context'' (2007, {{ISBN|0615167667}}), page 250</ref>

Other Bantu peoples, including the [[Tswana people]],<ref>[https://76crimes.com/2013/07/26/botswana/ Botswana chiefs: 'Homosexuality has always been here']. ''Erasing 76 Crimes'', 26 July 2013</ref> and the [[Southern Ndebele people|Ndebele people]], had traditions of acceptance or indifference towards same-sex sexual acts. In these societies, homosexuality was not viewed as an antithesis to heterosexuality. There was widespread liberty to engage in sexual activity with both men and women.<ref>Scott Long, A. Widney Brown, Gail Cooper. ''More Than a Name: State-sponsored Homophobia and Its Consequences in Southern Africa'', Human Rights Watch, 2003</ref>

In [[IsiNgqumo]], the term {{lang|zu|skesana}} refers to effeminate gay men who have sexual relations with men,  or transgender women, although the two are not the same at all.{{lang|zu|injonga}} refers to masculine gay men.<ref>{{cite journal |last1=Msibi |first1=Thabo |last2=Rudwick |first2=Stephanie |title=Intersections of two isiZulu genderlects and the construction of ''skesana'' identities |journal=Stellenbosch Papers in Linguistics Plus |date=3 September 2015 |volume=46 |pages=51–66 | doi=10.5842/46-0-616 |doi-access=free}}</ref>

Sexual intercourse between men was historically prohibited in South Africa as the [[common law crime]] of "[[sodomy]]" and "unnatural sexual offence", inherited from the [[Roman-Dutch law]].<ref name="goodman">{{cite journal |last1=Goodman |first1=Ryan |title=Beyond the Enforcement Principle: Sodomy Laws, Social Norms, and Social Panoptics |journal=California Law Review |date=2001 |volume=89 |issue=3 |pages=643–740 |doi=10.2307/3481180 |jstor=3481180 |ssrn=269983 |url=https://lawcat.berkeley.edu/record/1117697/files/fulltext.pdf }}</ref><ref>{{cite book |title=Principles of Criminal Law |last1=Burchell |first1=Jonathan |last2=Milton |first2=John |year=1991 |publisher=Juta |location=Cape Town |edition=1st |pages=571&ndash;572}}</ref><ref>{{cite book |last=Milton |first=John |title=South African Criminal Law and Procedure: Common-law crimes |year=1996 |publisher=Juta |location=Cape Town |edition=3rd |isbn=978-0-7021-3773-0 |pages=223&ndash;228}}</ref> [[Section 20A|A 1969 amendment]] to the ''[[Immorality Act, 1957|Immorality Act]]'' prohibited men from engaging in any erotic conduct when there were more than two people present.<ref name="botha">{{cite book |first1=Kevan |last1=Botha |first2=Edwin |last2=Cameron |author-link2=Edwin Cameron |editor1-first=Donald J. |editor1-last=West |editor2-first=Richard |editor2-last=Green |title=Sociolegal Control of Homosexuality: A Multi-Nation Comparison |url=https://archive.org/details/sociolegalcontro00west |url-access=limited |chapter=South Africa |year=1997 |publisher=Plenum Press |location=New York |isbn=978-0-306-45532-2 |pages=[https://archive.org/details/sociolegalcontro00west/page/n41 23]–26}}</ref> In the 1970s and the 1980s, LGBT activism was among the many human rights movements in the nation, with some groups only dealing with LGBT rights and others advocating for a broader human rights campaign. In 1994, male same-sex conduct was legalised, female same-sex conduct never having been illegal (as with other former British colonies). At the time of legalisation, the age of consent was set at 19 for all same-sex sexual conduct, regardless of gender. In May 1996, South Africa became the first jurisdiction in the world to provide constitutional protection to [[LGBT]] people, via [[Section 9 of the Constitution of South Africa|section 9(3)]] of the [[South African Constitution]], which disallows discrimination on race, gender, sexual orientation and other grounds. Since 16 December 2007, all discriminatory provisions have been formally repealed. This included introducing an equalised [[Age of consent in Africa|age of consent]] at 16 regardless of sexual orientation, and all sexual offences defined in [[gender-neutral]] terms.<ref>{{cite web|url=https://www.ageofconsent.net/world/south-africa|title=South Africa Age of Consent & Statutory Rape Laws|website=www.ageofconsent.net}}</ref><ref>{{Cite web|url=http://www.justice.gov.za/legislation/acts/2007-032.pdf|title=Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007}}</ref>

===Apartheid era===
Under South Africa's ruling [[National Party (South Africa)|National Party]] from 1948 to 1994, homosexuality was a crime punishable by up to seven years in prison; this law was used to harass and outlaw South African gay community events and political activists.<ref>{{cite news| url=http://news.bbc.co.uk/2/hi/africa/190268.stm | work=BBC News | title=Gay rights win in South Africa | date=9 October 1998 | access-date=23 December 2014}}</ref> In January 1966, the [[Forest Town raid]] on a large party in [[Forest Town, Gauteng]] led to further restrictions on gay and lesbian South Africans.<ref>{{Cite web|last=Pushparagavan|first=Dixson|title=The History of LGBT Legislation|url=https://www.sahistory.org.za/article/history-lgbt-legislation|access-date=2020-06-14|website=South African History Online}}</ref>

Despite state opposition, several South African [[gay rights]] organisations formed in the late 1970s. However, until the late 1980s gay organisations were often divided along racial lines and the larger political question of apartheid. The Gay Association of South Africa (GASA), based in the Hillbrow district in central [[Johannesburg]], was a predominantly white organisation that initially avoided taking an official position on apartheid, while the Rand Gay Organisation was multi-racial and founded in opposition to apartheid.<ref>{{Cite web|url=http://www.boycottworldpride.org/id13.html|archive-url=https://web.archive.org/web/20060627035812/http://www.boycottworldpride.org/id13.html|url-status=dead|title=Homosexuality under Apartheid.<!-- Bot generated title -->|archive-date=27 June 2006}}</ref><ref>{{cite journal|title=Treatment of homosexuality during apartheid|first=Robert M.|last=Kaplan|date=16 December 2004|journal=BMJ|volume=329|issue=7480|pages=1415–1416|doi=10.1136/bmj.329.7480.1415|pmid=15604160|pmc=535952}}</ref> [[Hubert du Plessis]], one of the most prominent South African composers of the 20th century, was proudly and openly gay yet also a staunch supporter of the National Party and composed many nationalist works. He was outspoken about his sexuality, however, and appeared before Parliament in the late 1960s to protest the tightening of sodomy laws.<ref>James May (2011) Obituary – Hubert du Plessis, Journal of the Musical Arts in Africa, 8:1, 115-116, DOI: 10.2989/18121004.2011.652401</ref>

In the country's 1987 general election, GASA and the gay magazine ''Exit'' endorsed the National Party candidate for Hillbrow, [[Leon de Beer]]. The campaign brought to a head the tensions between LGBT activists who overtly opposed apartheid and those that did not. De Beer was the National Party's first candidate to address gay rights, and advertised for his campaign in ''Exit''.<ref>{{cite journal|last=Conway|first=Daniel|title=Queering Apartheid: The National Party's 1987 'Gay Rights' Campaign in Hillbrow|journal=Journal of Southern African Studies|date=December 2009|volume=35|issue=4|pages=849–863|doi=10.1080/03057070903313210|s2cid=144525158}}</ref> It was the general opinion of the gay community of Hillbrow that their vote was the deciding factor in de Beer's ultimate victory.<ref>{{cite news |last= de Waal|first= Shaun|date= 1 September 1989|title=Everyone's chasing the Hillbrow gay vote |url=https://mg.co.za/article/1989-09-01-00-everyones-chasing-the-hillbrow-gay-vote |work= Mail & Guardian|access-date=1 September 2019}}</ref>

From the 1960s to the late 1980s, the [[South African Defence Force]] forced white gay and lesbian soldiers to undergo various medical "cures" for their sexual orientation, including [[sex reassignment surgery]].<ref>{{cite web|url=http://www.thegully.com/essays/africa/000825sexchange.html|title=The GULLY - Africa - Apartheid Military Forced Gay Troops into Sex-Change Operations|access-date=26 January 2017}}</ref> The treatment of gay and lesbian soldiers in the South African military was explored in a 2003 documentary film, titled ''[[Property of the State]]''.

Organisations such as the [[Organisation of Lesbian and Gay Activists]] (OLGA) worked with the [[African National Congress]] to include protections for LGBT people in the new Constitution of South Africa.<ref name=":3">{{Cite journal|last=Nicol|first=Julia|date=1991|title=Organisation of Lesbian and Gay Activists|journal=Agenda: Empowering Women for Gender Equity|issue=11|pages=45–46|jstor=4547977|issn=1013-0950}}</ref><ref>{{Cite journal|last=Thoreson|first=Ryan Richard|date=2008|title=Somewhere over the Rainbow Nation: Gay, Lesbian and Bisexual Activism in South Africa|journal=Journal of Southern African Studies|volume=34|issue=3|pages=689–690|doi=10.1080/03057070802259969|jstor=40283175|s2cid=144424127|issn=0305-7070}}</ref>

===Post-apartheid era===
[[File:Gay Flag of South Africa.svg|thumb|right|alt=Gay pride flag of South Africa|Gay pride flag of South Africa]]
In 1993, the [[African National Congress]], in the ''Bill of Rights'',{{efn|{{lang-zu|Umqulu Wamalungelo}}; {{lang-xh|Umqulu Wamalungelo}}; {{lang-af|Handves van regte}}; {{lang-nso|Molao wa Ditokelo}}; {{lang-tn|Molaotlhomo wa Ditshwanelo}}; {{lang-st|Bili ya Ditokelo}}; {{lang-ts|Nawumbisi wa Timfanelo}}; {{lang-ss|LuCwebu LwemaLungelo ELuntfu}}; {{lang-ve|Mulayotibe wa Pfanelo}}; {{lang-nr|UmTlolo WamaLungelo WobuNtu}}}} endorsed the legal recognition of same-sex marriages,<ref>{{cite web |url=http://www.anc.org.za/show.php?id=231 |title=A Bill of Rights for a New South Africa |access-date=2015-04-02 |url-status=dead |archive-url=https://web.archive.org/web/20150319202442/http://anc.org.za/show.php?id=231 |archive-date=19 March 2015 |df=dmy-all }}</ref> and the interim Constitution prohibited discrimination on the basis of sexual orientation. These provisions were kept in the new Constitution, approved in 1996, due to the lobbying efforts of LGBT South Africans.<ref>{{cite journal |last1=de Ru |first1=H. |title=A historical perspective on the recognition of same-sex unions in South Africa |journal=Fundamina |date=February 2013 |volume=19 |issue=2 |pages=221–250 |url=http://www.scielo.org.za/scielo.php?script=sci_abstract&pid=S1021-545X2013000200003 }}</ref> As a result, South Africa became the first nation in the world to explicitly prohibit discrimination based on sexual orientation in its constitution. Two years later, the [[Constitutional Court of South Africa]] ruled in [[National Coalition for Gay and Lesbian Equality and Another v. Minister of Justice and Others|a landmark case]] that the law prohibiting homosexual conduct between consenting adults in private violated the Constitution.

In 1994, during his inauguration speech as president, [[Nelson Mandela]] stated the following:<ref>{{cite web|url=https://www.southafrica.to/people/Quotes/NelsonMandela/Nelson-Mandela-inauguration.htm|title=Nelson Mandela's inauguration speech|work=The Department of Information and Publicity|date=9 May 1994}}</ref>
{{cquote|In 1980s the African National Congress was still setting the pace, being the first major political formation in South Africa to commit itself firmly to a Bill of Rights, which we published in November 1990. These milestones give concrete expression to what South Africa can become. They speak of a constitutional, democratic, political order in which, regardless of colour, gender, religion, political opinion or sexual orientation, the law will provide for the equal protection of all citizens.}}

The [[gay pride flag of South Africa]], designed by Eugene Brockman,<ref>{{cite web|title=Who are we?|url=http://gayflagofsouthafrica.co.za/who-we-are/|archive-url=https://web.archive.org/web/20120319225050/http://gayflagofsouthafrica.co.za/who-we-are/|archive-date=19 March 2012|website=Gay Flag of South Africa}}</ref><ref name=Nathan>{{cite web|last1=Nathan|first1=Melanie|title=South Africa first to recognize gay flag as an official national symbol|date=6 October 2012|url=http://www.lgbtqnation.com/2012/10/south-africa-first-to-recognize-gay-flag-as-an-official-national-symbol/|website=LGBTQ Nation|access-date=18 July 2014|archive-url=https://web.archive.org/web/20140408201919/http://www.lgbtqnation.com/2012/10/south-africa-first-to-recognize-gay-flag-as-an-official-national-symbol/|archive-date=8 April 2014|url-status=live}}</ref> is a hybrid of the [[Rainbow flag (LGBT movement)|LGBT rainbow flag]] and the [[Flag of South Africa|South African national flag]] launched in 1994 after the end of the [[apartheid]] era.<ref>{{cite news|last1=Williams|first1=Denise|title=Gay flag for a 'queer' South Africa|url=http://www.timeslive.co.za/thetimes/2012/10/08/gay-flag-for-a-queer-south-africa|access-date=20 July 2014|work=Times LIVE|date=8 October 2012|archive-url=https://web.archive.org/web/20130619105353/http://www.timeslive.co.za/thetimes/2012/10/08/gay-flag-for-a-queer-south-africa|archive-date=19 June 2013|url-status=live}}</ref> Brockman said "I truly believe we (the LGBT community) put the dazzle into our [[rainbow nation]] and this flag is a symbol of just that".<ref name=CTPride/> The stated purposes of the flag include celebrating legal [[same-sex marriage in South Africa]] and addressing issues such as [[Heterosexism|discrimination]], [[homophobia]], [[corrective rape]] and [[hate crime]]s.<ref>{{cite web|last1=Berry|first1=Bruce|title=Gay flag in South Africa|url=http://www.crwflags.com/fotw/flags/za-gay.html|date=25 January 2011|website=FOTW|access-date=21 July 2014|archive-url=https://web.archive.org/web/20130306112916/http://www.crwflags.com/fotw/Flags/za-gay.html|archive-date=6 March 2013|url-status=live}}</ref> The flag is a [[gay pride]] symbol that aims to reflect the freedom and diversity of the South African nation and build pride in being an LGBT South African.<ref name=CTPride>{{cite web|url=http://capetownpride.org/news/news/59-south-african-gay-flag-revealed-at-mcqp/|title=South African Flag Revealed at MCQP|date=22 December 2010|publisher=Cape Town Pride|access-date=4 April 2011|archive-url=https://web.archive.org/web/20110809150001/http://capetownpride.org/news/news/59-south-african-gay-flag-revealed-at-mcqp/|archive-date=9 August 2011}}</ref><ref name=QueerlifeSA>{{cite web|title=South Africa Gets Own Gay Flag|url=http://www.queerlife.co.za/test/news/jan2011/6038-south-africa-gets-own-gay-flag.html|date=January 2011|website=Queerlife South Africa|access-date=18 July 2014|archive-url=https://web.archive.org/web/20120316234415/http://www.queerlife.co.za/test/news/jan2011/6038-south-africa-gets-own-gay-flag.html|archive-date=16 March 2012|url-status=dead|df=dmy-all}}</ref><ref>{{cite web|title=Gay Flag of South Africa|url=http://gayflagofsouthafrica.co.za/|archive-url=https://web.archive.org/web/20110727183557/http://gayflagofsouthafrica.co.za/|archive-date=27 July 2011}}</ref><ref>{{cite news |title=SA to recognise gay flag |url=http://www.iol.co.za/news/south-africa/sa-to-recognise-gay-flag-1.1397735#.U8wExeOSyyg |access-date=20 July 2014 |work=IOL |agency=SAPA |date=6 October 2012 |archive-url=https://web.archive.org/web/20150618235759/http://www.iol.co.za/news/south-africa/sa-to-recognise-gay-flag-1.1397735 |archive-date=18 June 2015 |url-status=live |df=dmy }}</ref>

In 1998, Parliament passed the ''Employment Equity Act''. The law protects South Africans from labour discrimination on the basis of sexual orientation, among other categories.<ref>{{Cite web|url=http://www.labour.gov.za/act/section_detail.jsp?legislationId=5954&actId=8191&sectionId=8327|archive-url=https://web.archive.org/web/20050313175936/http://www.labour.gov.za/act/section_detail.jsp?legislationId=5954&actId=8191&sectionId=8327|url-status=dead|title=Homosexuality and Labour Laws in South Africa|archive-date=13 March 2005}}</ref> In 2000, similar protections were extended to public accommodations and services, with the commencement of the ''[[Promotion of Equality and Prevention of Unfair Discrimination Act 2000|Promotion of Equality and Prevention of Unfair Discrimination Act]]''.<ref>{{Cite web|url=http://www.parliament.gov.za/pls/portal/web_app.utl_output_doc?p_table=acts&p_doc_col=act_doc&p_mime_col=mime_type&p_id=50977|archive-url=https://web.archive.org/web/20050902235325/http://www.parliament.gov.za/pls/portal/web_app.utl_output_doc?p_table=acts&p_doc_col=act_doc&p_mime_col=mime_type&p_id=50977|url-status=dead|title=Promotion of Equality and Prevention of Unfair Discrimination Act|archive-date=2 September 2005}}</ref>

In December 2005, the Constitutional Court of South Africa ruled that it was unconstitutional to prevent people of the same gender from marrying when it was permitted to people of the opposite gender, and gave the South African Parliament one year to pass legislation which would allow same-sex unions. In November 2006, the [[National Assembly of South Africa|National Assembly]] voted 229–41 for a bill allowing same-sex civil marriage, as well as civil partnerships for unmarried opposite-sex and same-sex couples. However, civil servants and clergy can refuse to solemnise same-sex unions.<ref>{{Cite web|url=http://www.dha.gov.za/documents/act17.pdf|title=Same Sex Civil Marriage|access-date=1 January 2007}}{{dead link|date=June 2023|bot=medic}}{{cbignore|bot=medic}}</ref> Not all ANC members supported the new law. Former South African President [[Jacob Zuma]] was among its most outspoken opponents, claiming in 2006 that "when I was growing up, an ungqingili ([[Zulu language|Zulu]] term describing a homosexual) would not have stood in front of me. I would knock him out."<ref>{{cite web|url=https://login.thetimes.co.uk/?gotoUrl=http://www.thetimes.co.uk/tto/news/politics/|title=Login|access-date=26 January 2017}}</ref> Unlike Zuma, his successor [[Cyril Ramaphosa]] is considered LGBT-friendly and has a positive record regarding LGBT people and their rights. In 2017, he said in a recorded videoclip to celebrate [[LGBT History Month]]: "It is a sad truth that in our nation the LGBTI community are amongst the most vulnerable and marginalised. They suffer discrimination, violence and abuse. We must as a nation do better than what we are now. We are all born the way we are. We need to support, embrace and respect each other. When we treat each other with dignity, we are all more dignified. When we treat each other with respect, we are all more respected. It is upon us all to contribute to the creation of a more just, equal and safe society. Every South African must hold themselves, our communities, our institutions and our government accountable for upholding our laws and for protecting the rights of all in South Africa."<ref>{{cite web|url=https://www.thesouthafrican.com/lgbt-rights-cyril-ramaphosa-jacob-zuma/|title=LGBT rights: Why Cyril Ramaphosa is a massive step up from Jacob Zuma|work=thesouthafrica.com|date=22 February 2018|last=Head|first=Tom}}</ref><ref>{{cite web|url=https://www.pinknews.co.uk/2018/02/15/south-africa-president-cyril-ramaphosa-lgbt-rights/|title=What does South Africa's new President Cyril Ramaphosa think about LGBT rights?|work=PinkNews|date=15 February 2018|last=Duffy|first=Nick}}</ref>

In 2019, Cyril Ramaphosa included lesbian and gay people in his presidential inauguration speech, saying:<ref>{{cite web|url=https://www.mambaonline.com/2019/05/26/ramaphosa-includes-gay-community-in-inauguration-speech-now-its-time-for-action/|title=Cyril Ramaphosa has included lesbian and gay people in his presidential inauguration speech. It's a rare and welcome occasion in Africa but are his words enough?|work=Mambaonline|date=26 May 2019|last=DeBarros|first=Luiz}}</ref>
{{cquote|Let us end the dominion that men claim over women, the denial of opportunity, the abuse and the violence, the neglect, and the disregard of each person’s equal rights. Let us build a society that protects and values those who are vulnerable and who for too long have been rendered marginal. A society where disability is no impediment, where there is tolerance, and where no person is judged on their sexual orientation, where no person suffers prejudice because of the colour of their skin, the language of their birth or their country of origin.}}