Sexual orientation

• Date: 01 January 1997
• Author: R. Louw
• DOI: 10.10520/EJC34821
• Published date: 01 January 1997
• Pages: 245-266

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10

Sexual Orientation

Ronald Louw *

Introduction

As the previous edition of the Yearbook did not cover the topic of sexual

orientation, this chapter will review the years 1995 to 1998. Over the past four

years there have been enormous strides in the establishment of gay and

lesbian equality. These developments have been spearheaded by the National

Coalition for Gay and Lesbian Equality.

The National Coalition for Gay and Lesbian Equality

The Coalition was established in December 1994 as a result of the inclusion of

‘sexual orientation’ as a prohibited ground of discrimination in the interim

Constitution. One of the principle aims of the Coalition was to lobby for

inclusion of the prohibition in the final Constitution.1 For the first time in

South African history a wide range of gay and lesbian organisations came

together to work for a common goal. The previous decade of organisation had

been characterised by a predominance of white middle class interests and a

marginalisation of black gay and lesbian organisation. The Coalition sought

to change this by not only being representative of all interests but also by

taking on an overtly political stance. However, a number of important factors

had contributed to the protection in the interim Constitution. These included

the openly gay stance of ANC Delmas treason trialist Simon Nkoli, who went

on to found the first predominantly black and pro-ANC gay an lesbian

organisation, the stand taken by small groups of activists within the liberation

movement particularly those in the Organisation of Gay an Lesbian Activists

* B Proc (Unisa) BA (Hons), HDE, LLM (Cape Town), Senior Lecturer, Department

of Public Law, University of Natal, Durban.

1 The other three founding aims were: to campaign for the decriminalisaion of same-

sex conduct, to initiate litigation challenging discriminatory legislation, and to train

a representative gay and lesbian leadership on the basis of racial and gender equality

(NCGLE Four Year Report, forthcoming).

Ronald Louw

246

(OLGA) who successfully applied for affiliation to the United Democratic

Front in the early 1980s, the broad commitment to human rights that emerged

in the anti-apartheid struggle, and finally, the negotiators who drafted the

interim constitution at the Kempton Park talks were also lobbied. In order to

succeed in its aim of retention of the equality provision in the final

constitution, the NCGLE embarked on an extensive lobbying campaign to the

extent of opening up a campaign office in Cape Town and employing a

lobbyist. Two important submissions were made to the Constitutional

Assembly who were drafting the final constitution. The first dealt principally

with the homophobic arguments of the African Christian Democratic Party

and focussed on the history of gay and lesbian discrimination and legislative

exclusion. The second submission placed the debate within an international

context.2 Successful inclusion in the final Constitution was a remarkable

victory for the NCGLE, particularly as no other country in the world had a

similar provision in its national Constitution. Since then the improvement in

the legal status of gays and lesbians has been little short of breathtaking.

Family Law

South African family law has been dogged by prejudice and narrow-

mindedness with an exclusive focus on the dominant conception of a western

nuclear family. That this was inapplicable to the majority of South Africans is

indicative of its apartheid basis. For example, customary, Moslem and Hindi

marriages were not legally recognised. Children of such marriages were

illegitimate. Non-traditional family structures such as single-parent families,

non-married partners, and same-sex partners were also excluded from legal

recognition. The narrow ideology of family is so pervasive that even as

recently as 1998 two leading family law academics still hankered after this

discredited past of narrow conceptions of family law by defining it as follows:

Family law is that part of private law which regulates the legal

relationship between spouses (that is, husband and wife), as well as the

legal relationship between parents (or guardians) and children.3

Fortunately there are numerous indications in our democratic dispensation

that point to a wider and more inclusive understanding of family. The

Constitution itself points to this. In section 15 of the Bill of Rights dealing

with the freedom of religion, belief and opinion, subsection 3(a) states that

this right does not prevent the passing of legislation recognising marriages

2 NCGLE Four Year Report, forthcoming.

3 Visser PJ & Potgieter JM Introduction to Family Law, 1998: 1.