LGBT LEGAL RIGHTS IN SOUTH AFRICA

Welcome back 🙂 to your source of warmth, hope you’re well and smiling. As i promised to dish you out LGBT News, well i have been doing some research on the “LEGAL RIGHTS part.
Now let’s face the Facts!!

LEGAL RIGHTS
•The protection of LGBT rights in South Africa is based on section 9 of the Constitution, which forbids discrimination on the basis of
1)Sex
2)Gender
3)Sexual orientation, and applies to the government and to private parties. The Constitutional Court has stated that the section must also be interpreted as prohibiting discrimination against transgender people. These constitutional protections have been reinforced by the jurisprudence of the Constitutional Court and various statutes enacted by Parliament.

In 2012 the Congress of Traditional Leaders of South Africa (Contralesa) filed a draft document calling for the removal of LGBT rights from the Constitution of South Africa. The group submitted a proposal to the Constitutional Review Committee of the National Assembly to amend section 9 of the Constitution; the Committee, at the time, was chaired by Sango Patekile Holomisa MP, who is also president of Contralesa. The parliamentary caucus of the ruling African National Congress rejected the proposal.

LEGALIY OF SAME-SEX SEXUALITY ACTIVITY
On 4 August 1997, in the case of S v Kampher, the Cape High Court ruled that the common-law crime of sodomy was incompatible with the constitutional rights to equality and privacy, and that it had ceased to exist as an offence when the Interim Constitution came into force on 27 April 1994. Strictly speaking, this judgment only applied to the crime of sodomy and not to the other laws criminalising sex between men, and it was also only binding precedent within the area of jurisdiction of the Cape court. On 8 May 1998, in the case of National Coalition for Gay and Lesbian Equality v Minister of Justice, the Johannesburg High Court ruled that the common-law crimes of sodomy and “commission of an unnatural sexual act”, as well as Section 20A of the Sexual Offenses Act, were unconstitutional. The Constitutional Court confirmed this judgment on 9 October of the same year. The ruling applied retroactively to acts committed since the adoption of the Interim Constitution on 27 April 1994.

Despite the decriminalisation of sex between men, the age of consent set by the Sexual Offenses Act was 19 for homosexual acts but only 16 for heterosexual acts. This was rectified in 2007 by the Criminal Law (Sexual Offenses and Related Matters) Amendment Act, which codified the law on sex offenses in gender- and orientation-neutral terms and set 16 as the uniform age of consent. In 2008, even though the new law had come into effect, the former inequality was declared to be unconstitutional in the case of Geldenhuys v National Director of Public Prosecutions, with the ruling again applying retroactively from 27 April 1994.

ANTI-DISCRIMINATION LAWS
The Constitution prohibits all unfair discrimination on the basis of sex, gender or sexual orientation, whether committed by the government or by a private party. In 2000, Parliament enacted the Promotion of Equality and Prevention of Unfair Discrimination Act (PEPUDA), which re-states the constitutional prohibition and establishes special Equality Courts to address discrimination by private parties. The Employment Equity Act and the Rental Housing Act specifically forbid discrimination in employment and housing, respectively.

The PEPUDA also prohibits hate speech and harassment based on any of the prohibited grounds of discrimination. South Africa does not have any statutory law requiring increased penalties for hate crimes, but hatred motivated by homophobia has been treated by courts as an aggravating factor in sentencing. In August 2011 the Department of Justice established a task force to address the issue of hate crimes against LGBT people.

Men who have sex with men are permitted to donate blood after six months of celibacy.

RECOGNITION OF SAME-SEX RELATIONSHIPS
Further information: Same-sex marriage in South Africa
On 1 December 2005, in the case of Minister of Home Affairs v Fourie, the Constitutional Court ruled that it was unconstitutional for the state to deny to same-sex couples the ability to marry, and gave Parliament one year in which to rectify the situation. On 30 November 2006 the Civil Union Act came into force; despite its title it does provide for same-sex marriages. Indeed, the act allows both same- and opposite-sex couples to contract unions, and allows a couple to choose to call their union either a marriage or a civil partnership. Whichever name is chosen, the legal consequences are the same as those under the Marriage Act (which allows only for opposite-sex marriages).

Prior to the introduction of same-sex marriage, court decisions and statutes had recognized permanent same-sex partnerships for various specific purposes, but there was no system of domestic partnership registration. The rights recognized or extended by the courts include the duty of support between partners, immigration benefits, employment and pension benefits, joint adoption, parental rights to children conceived through artificial insemination, a claim for loss of support when a partner is negligently killed, and interstate inheritance. Rights extended by statute include protections against domestic violence and the right to family responsibility leave.

PARENTING AND ADOPTION
A number of High Court judgments have determined that the sexual orientation of a parent is not a relevant issue in decisions on child custody. In 2002 the Constitutional Court’s ruling in Du Toit v Minister of Welfare and Population Development gave same-sex partners the same adoption rights as married spouses, allowing couples to adopt children jointly and allowing one partner to adopt the other’s children.[26] The adoption law has since been replaced by the Children’s Act, 2005, which allows adoption by spouses and by “partners in a permanent domestic life-partnership” regardless of orientation.

In 1997, artificial insemination, which was previously limited to married women, was made legal for single women including lesbians. In the 2003 case of J v Director General, Department of Home Affairs the Constitutional Court ruled that a child born by artificial insemination to a lesbian couple was to be regarded as legitimate, and that the partner who was not the biological parent was entitled to be regarded as a natural parent and to be recorded on the child’s birth certificate.

Military service
LGBT people are allowed to serve openly in the South African National Defense Force (SANDF). In 1996 the government adopted the White Paper on National Defense, which included the statement that, “In accordance with the Constitution, the SANDF shall not discriminate against any of its members on the grounds of sexual orientation. In 1998 the Department of Defense adopted a Policy on Equal Opportunity and Affirmative Action, under which recruits may not be questioned about their sexual orientation and the Defense Force officially takes no interest in the lawful sexual behavior of its members.[30] In 2002 the SANDF extended spousal medical and pension benefits to “partners in a permanent life-partnership.

GENDER TRANSITION LAWS
The Alteration of Sex Description and Sex Status Act allows transsexual and inter-sex people to apply to have their sex status altered in the population registry, and consequently to receive identity documents and passports indicating their new sex. In the case of transsexual people it requires them to have undergone medical or surgical treatment before applying. A number of Labour Court rulings have found against employers that mistreated employees who underwent gender transition.

One last thing!
•Live
•Love
•Laugh
Stay blessed 😀

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s