“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.” So states section 9-Equality- of our renowned Constitution, a document that was hammered out during the negotiations of the early 90s. It is held in high regard for a lot of things chief amongst those is that it was the first in the world to expressly outlaw the discrimination of people on the basis of sexual orientation. It was inevitable, and rightly so, that the gay and lesbian community would be able to enjoy the same protection and perks that have long being afforded to their heterosexual counterparts.– and that homosexuals have always existed, it’s the legal recognition of their marriages under the Civil Union Act 17 of 2006 that drives them up the wall because the majority of South Africans are said to be opposed to same-sex marriages. While it’s true that the legislation of same-sex marriages was a result of a Constitutional Court directive – after the court had heard the case of Minister of Home Affairs v Fourie – and not a motion that emanated from within the structures of a governing party, in this case the ANC, doesn’t make the law less legitimate. It wasn’t the first time that affected parties had turned to the courts when their plight wasn’t adequately being attended to by the popularly constituted government. The first case that comes to mind is the socio-economic rights precedent-setting S v Grootboom and Others wherein the Constitutional Court ruled that there’s an obligation on the State to progressive provide basic housing to those without it but to do so within its financial capabilities. If the Treatment Action Campaign hadn’t taken the ministry of health, and by extension the government, to the courts for its unwillingness to make an antiretroviral drug, nevirapine, available in public health facilities, who knows how much longer the government would dragged its feet in distributing the life-prolonging drug and how many more would’ve unnecessarily perished. These two examples are indicative of the fact that not all progressive laws must always await sanctioning from a governing party’s structures.
The usual ‘unnaturalness’ of homosexuality and its supposed ‘threat’ to the fabric of ‘family values’ are arguments that are constantly raised by fundamentalist detractors, the problem is that homosexuality is almost always reduced to sexual intercourse aspect. It’s as if the only thing people in same-sex relationship do is concern themselves with sex. As if they don’t work; don’t have aspirations; don’t fill the pinch when the petro price increases; don’t have opinions on matters of national importance or don’t sulk when their favourite team loses to a bitter rival. In essence they aren’t like the ‘normal’ heterosexual people. This is a blatant attempt to dissociate the gay and lesbian community from activities that place a human factor to their daily experience, lest they be seen as ‘normal’. As for the supposed ‘threat’ that homosexual folk pose on the ‘family value’ system, is the anti-gay brigade trying to say that the display of care; compassion; empathy and love are characteristics exclusively inherent in straight people? Are heterosexual parents who abdicate their parental responsibilities to television and other pop culture phenomena being supportive of ‘family values’? This country is littered with orphaned children, what’s wrong with a gay couple adopting a child and offering the child a stable home to live in? Does the recognition of same-sex relationships mean the population growth of the Republic will slowly wither? I don’t think so. While there’s a biological and social expectation on humans to continue the millennia old tradition of procreation, it’s exactly that, an expectation and not a compulsion. If it were a compulsion, I shudder to think what would become of infertile people and those who – for reasons known to them – would rather not exercise the option to reproduce off-springs. Would they be said to be ‘impeding’ on the ‘natural’ order of things as the gay and lesbian folk is castigated of doing?
Contralesa ought to rather concern itself with the many cases of the patriarchal and heinous act of ukuthwala– a practice where little girls in mainly rural areas are forced to marry older men- and ensuring that we don’t unnecessarily lose younger men to the many bogus initiation schools where rites of passage into adulthood take place. African languages as carriers of cultures that Contralesa members are the custodians of are getting a raw deal when compared to Afrikaans and English, isn’t that a cause worth championing instead of seeking to revoking certain people’s rights to dignity and equality.
Section 11 -the Right to Life- of the Constitution says that everyone has a right to life and it’s around this inalienable right that every other right and its limitation is constituted. It, then, follows that the inability to derive maximum happiness and fulfilment of life would render the sacred right to life redundant, put differently the annulment of same-sex marriages would be equal to an attack on the homosexual community’s right to life since their sexual orientation can’t be divorced from the lives they lead.
The struggle for human rights in South Africa was one for all people, not just the heterosexual community. Some of the rights enjoyed by homosexual people are to assemble and participate in their colourful and overtly extravagant gay pride marches even if some people don’t approve of them. They have as much a claim to public spaces as the next conservative heterosexual person and how they express themselves is their business and shouldn’t be seem as ‘imposing’ ‘their’ ways on ‘us’. I doubt that the gay and lesbian folk secretly harbour intensions of taking over and initiating a “Homosexual Inquisition” of sorts that’s aimed at converting heterosexuals and condemning to the stake those who refuse conversion a la the Christians during the Spanish Inquisition of the 15th century. I, however, do fear that terms like “these people” and the othering of the homosexual community will add fuel to an already growing problem of hate crimes in our society. It’s more concerning because the tones of intolerance usually come from people of considerable influence like the chiefs and clergy. Are those who are ‘different’ so much of a ‘threat’ that they must be beaten nearly dead; raped as act of supposed correct and strangled with barbed wires? The arrogant sentiments of those who think that theirs is the ‘right’ way of living and those at the receiving end of such prejudice is perhaps best captured in the Oscar, Golden Globe and Grammy award winning theme song – Colours Of The Wind– to Disney’s “Pocahontas” wherein Vanessa Williams sings:”You think the only people who are people are the people look and think like you/ But if you walk the foot steps of a stranger/ You learn things you never knew you never knew.”GAY RIGHTS ARE PROTECTED BY THE CONSTITUTION TOO,