The History of LGBT legislation

Introduction

Discriminatory, separate and oppressive, these are words that were used to explain South Africa’s Apartheid regime, which officially lasted from 1948-1994 (Thompson, 1990). Millions were affected by apartheid, but a group that has been seemingly forgotten during this era is the LGBT community. A government that implemented and quantified its mission of separateness with a radical fervor did not target homosexual individuals until 1968, nearly twenty years after the apartheid's inception. A focus will be on the LGBT individuals whose lives were affected by anti-homosexual legislation during the apartheid and their continuing fight to win equal treatment. This study will examine the legalistic history of Lesbian Gay Bisexual Transsexual life in South Africa by exploring relevant legislation and their effects on the lives of LGBT people. Furthermore, this study will also examine the history of LGBT community and their transformation from a closeted community to one that is becoming one South Africa's most vocal advocates for human rights.

Origins of opposition towards homosexuality and history of homosexuality within African society

Most denominations of Christianity rejected homosexuality since it was deemed in the Bible to be unnatural and a sin: "Leviticus 18:22 do not lie with a man as one lies with a woman; that is detestable. (Leviticus 22: New Testament)." One can argue that opposition towards homosexuality in South Africa stems from religious tradition. Ever since colonization, Christianity has played a role in shaping South African society. Christian based education began during the 1730s with arrival of German missionaries, and ended in 1953 when the Bantu education system was introduced (Thompson, 1990). British missionary schools were the primary source of education for Africans and through these schools, Christianity and its message of sexual purity were able to spread (Thompson, 1990). Missionaries had a cultural impact as well, through their alteration of norms and people's perception towards sexuality and the shaping of morality (Sanders, 1997). Therefore, missionaries were able to dictate to their followers what should be considered moral.

There is evidence that pre-colonial African societies accepted homosexuality on a situational basis. The practice of boy-wives was practiced amongst the Zande of Sudan and was also practiced amongst mine workers in South Africa (Sanders, 1997). Homosexual acts were referred to as hlobongo amongst the Zulu and metsha amongst the Ngoni (Sanders, 1997). Lesbianism also occurred in polygamous households, but there is scarce information concerning lesbian activity during pre-colonial and even during the contemporary times, that is until the 1960s (Sanders, 1997). However, missionaries were quick to repress such behavior (Sanders, 1997). A caveat concerning African society's views towards homosexuality, was that gay acts were condoned, while lesbianism was condemned (Sanders, 1997).

With the burgeoning Afrikaner nationalist movement of the 1900s, Dutch Reform Calvinism became a major foundation of apartheid and nationalist Afrikaner ideology. According to this religious ideology, homosexuality was unnatural and immoral (Mader, 2008). Therefore, it is safe to assume that the nationalist government would have taken an anti-homosexuality stance, which would have influenced policy. The apartheid government operated in a state of constant paranoia. It believed that "their" South Africa was under siege from exterior as well as interior forces. The minority government believed they were ordained to civilize South Africa. This paternalistic view stems from the extremist Afrikaner understanding of Christianity (Thompson, 1990). Therefore, any opposition to their role and superiority would be met with harsh repercussion.

The government believed that the only way to achieve this utopia would be to control every aspect of societal life. The Terrorism Acts (1967), arrests and murders of dissident political activists, censorship of films, literature, and sexual repression are all examples of the government's attempt to appease that paranoia by trying to control nearly every aspect of life. Black consciousness and civil rights movements were seen as threats to the political and indeed, the very survival of South Africa, and sexual deviance was seen as degenerative virus that would weaken Afrikaner stock. In keeping with the grandiose rhetoric of Afrikaner nationalism, the apartheid government believed that if South Africa wanted to avoid the fates of ancient Rome, and Greece, it must maintain its Christian purity and avoid homosexual debauchery, since sexual deviance would lead to the downfall of South Africa (Retief, 1995). Homosexuals were also seen as child molesters and this rhetoric was used to pass the Immorality Act amendments of 1968.

Experiences of Homosexual people in South Africa

Homosexuality was a common occurrence in the gold mines of South Africa during the 1950s and 1960s (and even now) (Dunbar Moodie, Vivienne Ndatshe and British Sibuyi, 1988). The men interviewed argued that they are heterosexual. They explained that they were isolated from their wives and felt lonely, so they took young boys as their “wives” (Moodie, et al, 1988). Although these men argued that they turned to homosexuality as a last resort, some chose to extend their stay at mines rather than return home in order to be with their "mine wives". This demonstrates that these relationships held significant meaning, and that some men even preferred to be with men rather than women. The argument can be made that these men chose to return to their heterosexual lifestyle because they did not want to be ostracized by a disapproving society, and had little opportunity to engage in homosexual activities outside of the mines.

The role of the “wife” these mine marriages is to clean to the living quarters and to provide company for the “husband” (Moodie et al., 1988). Mine marriages were usually terminated at the end of work cycle. Interviewees kept these relationships discrete: ' "”¦people do not admit openly to it, ‘because it was a disgrace".' (Moodie et al., 1988: 233). This refusal to openly acknowledge their sexuality is indicative of their fear of the potential social and personal repercussions such as losing their families and place in their communities. However, there were men who chose to remain in the gay subculture.

Simon Nkoli (November 26, 1957- November 30, 1998), a prominent gay rights activist recounted his experience of coming out: “Ten years later I came out of my own closet when I met a man, fell in love with him, and told my parents. Ever since then, I seem to have been coming out of closets all the time... relationship. My mother's reaction showed concern. She didn't want to reject me. She wanted to rectify things...But in the end, I was lucky she was concerned. I've counselled lots of people whose parents weren't as concerned as she, whose parents just threw their clothes into the street or turfed them out of the house. My mother, at least, tried to help me, in the ways that she knew how." (Nkoli, 1995:252-253).

Nkoli's account is representative for most homosexual people; however, there are families that are accepting: “My mother understood; her uncle was also gay. All the others at home understood and accepted it. My friends who understand are okay, those who do not swear at me calling me isitabane. The community loves me for my hardworking household chores. They say if only I was a girl my mother would be proud." (Mclean and Linda Ngobo, 1994:169).

For Black and White lesbians, their situation is affected by their ascribed role of being women in a patriarchal society. Situations undoubtedly experiences varied, but most women interviewed by Tanya Chan Sam (1995) mentioned they were fearful of telling their families of their orientation. Some women also feared that their co-workers would ostracize them and this would limit their earning potential (Sam, 1995).

White homosexual men were relatively well-off when compared to other homosexual groups. Gevisser (1995) argue that homosexual, middle/upper-class white were able the first to mobilize a homosexual movement because they had enough financial and political clout supporting them to achieve a minor victory for homosexual activism. However, White South Africans were also targeted by their communities. Gay White men were often accused of being child molesters and were arrested. The ideas of those homosexuals were child molesters persisted into the 1990s (Gevisser & Cameron, 1995).

The Western Cape's Colored communities are credited with the earliest and most formalized expression of homosexuality with their "moffie" culture (Chetty, 1995). Moffie drag parties provided a haven for gay men to come together and celebrate their sexuality. The role of these clubs is important since they operated during a period of extensive sexual repression and gave the homosexual community an outlet to express themselves (Chetty, 1995).

Most LGBT people had to maintain a certain level of secrecy. During the apartheid period gay life and culture took place behind closed doors. Homosexual people would go to clubs that catered exclusively to them, or organize parties at their homes. LGBT formed communities in places like District Six in Cape Town, and Sophia-town in Johannesburg. Urban areas also offered homosexuals form townships more freedom, to be away from judgmental parents and communities, and live around people who shared similar life experiences and who were accepting of them.

Overview of the Anti-Homosexual Legislation

The Immorality Act of 1957 was one of the first pieces of legislation that tried to curb relationships between people; however the Immorality Act was only a component of a much larger, more oppressive scheme. The Immorality prohibited sexual intercourse between people of different ethnicities. During the 1920s, Afrikaner nationalism was gaining momentum and was beginning to define the future of South African politics of apartheid. James Barry Munnik Hertzog (April 3, 1866- November 21, 1942), the Broederbond and the Helpmekaar would push forward Afrikaner revivalism (Thompson, 1990). The main objective of the nationalist movement was to establish an Afrikaner state that would be seen as bastion of civilization, grounded on Afrikaans culture, Afrikaans language and Dutch Reform Calvinism, separated from English influence and isolated from perceived dangerous races and ideologies. The Immorality Act of 1957 is an example of the governments’ attempt to implement a homogenous, God-fearing South Africa. It is clear that anything that did not fall under the narrow criteria of Afrikaner “culture”, be it different race, different ideology, or different lifestyles, would be restricted and outlawed.

Although the Immorality Act of 1957 demonstrated the official stance of the government towards issues it deemed deviant, enforcement of these laws was relatively slack (Gevisser and Cameron, 1995). The Immorality Act of 1957 restricted 'unnatural/immoral sexual acts' which was euphemism for sexual act associated with homosexuality or non-reproductive intercourse (Weeks, 1981).

The 1966 Forest Town Raid

Amendments were introduced to the 1957 Immorality Acts that further restricted relationships between different races and only outlawing homosexuality if it occurred in public places (Gevisser, 1995). However, the 1966 raid in Forest Town served as impetus to create the first explicit anti-homosexual legislation (Gevisser, 1995). On a weekend in January 1966, police arrested nine men for masquerading as women and participating in 'indecent activity' (Gevisser, 1995). This high profile raid brought the homosexual subculture into public view, and antagonized homosexuals. Prior to the raid, the Immorality Acts of 1927 basically outlawed homosexuality in public, this changed with the 1968 amendment to the Immorality Act of 1957 (Retief, 1995).

The loophole in the South African Immorality Acts were that people could only be arrested if the offences were conducted in public (Gevisser, 1995), therefore in 1968, Minister of Justice Pelser proposed an amendment to the Immorality Act of 1957 which would make homosexuality illegal (Gevisser, 1995). This legislation would force homosexuals to mobilize and attack the charter. The Law Reform Movement of 1968 was led by a small group of gay professionals (Gevisser, 1995), and though it was mainly a white middle-class organization, it had success in bringing together homosexuals from different classes of society. The Law Reform’s objective was to maintain the status quo, that is, to ensure that their way of life would not be hindered. For this reason the Law reform movement distanced itself from the anti-apartheid movement and left-wing politics, in order to maintain some respectability in the eyes of Parliament. Therefore, Black homosexual people were marginalized even within the gay community.

This separation of homosexual rights along “racial” lines is an example of the magnitude in which apartheid divided society. The White homosexual movement, as repressed as it was, still had enough mobilization and economic power to challenge the government and achieve a minor victory. The legislation did not pass but amendments were added to the Immorality Act of 1957, which were: 1) increasing the age of consent from 16 to 19. 2) Outlaw dildoes. 3) The "men at a party" clause, which prohibited two or more men to be together and perform any act that would arouse "sexual passion." (Gevisser, 1995). These amendments were designed to move gay culture indoors and away from the public (Gevisser, 1995). The objective of the government was to minimize the presence of homosexuals, and protect society from the "corrupting influence" of the LGBT community. Hence, the LGBT communities were relatively unaffected by these amendments, save for a few sporadic raids on clubs and houses, coupled with sensationalist stories in the newspapers, they would be left alone as long as they were discrete.

The Law Reform was focused solely on the maintenance of the status-quo and with their "victory" the movement dwindled and eventually died off.

The 1970s and 1980s: An atmosphere for change

The 1970s and 80s marked a time of turmoil for the entire African continent. African nation were becoming decolonized and gaining their independence (Thompson, 1990). South Africa was becoming increasingly economically isolated and political agitation within the country was increasing (Thompson, 1990). South Africa was being criticized by the international community for its occupation of Namibia (Thompson, 1990). It was during this time that South Africa began engaging in armed conflicts with Namibia, Angola, Zimbabwe and Mozambique, and, to increase its military ranks in 1977 implemented conscription (Zyl, De Gruchy, Lapinsky, Lewin, Reid, 1999). This marked the beginning of the end for the apartheid government; the Nationalist Party's dream of an Afrikaner Empire was beginning to crumble. The death of popular political activist and black consciousness leader Steve Biko's (1946-1977) and the governments reaction to the Soweto Uprising (1976) further alienated the South African government from the international community (Thompson, 1990).

The sense of paranoia and that always pervaded the apartheid government reached fever pitch. They believed that South Africa was undergoing a ' "total onslaught" (Thompson, 1990)' but the ruling Nationalist Party was forced to implement minor changes to the apartheid system, while simultaneously suppressing opposition (Thompson, 1990). Discontent towards the government increased as a growing percentage of Afrikaner people started to oppose their government (Thompson, 1990).

This political atmosphere was conducive for the spreading and strengthening of opposition movements, and LGBT rights groups began to incorporate the LGBT struggle into to the wider anti-apartheid cause. The creation of Gay and Lesbians of the Witwatersrand (GLOW) provided marginalized groups, such as Black, Colored and Indian people, a platform to express their needs, provide each other support, and create a unified front to battle homophobia as well as the apartheid.

The 1980s witnessed the formation of two major gay rights groups: GLOW was formed in 1988, of which Simon Nkoli (1957-1998) and Linda Ngobo (-1993), Palesa Ditsie (1972-present) were founding members, and Organization of Lesbian and Gay Activists (OLGA) (Mayers, 2013). Nkoli also helped found the National Coalition for Gay and Lesbian Equality (NCGLE), which would later be known as Lesbian and Gay Equality Project (LGEP) (Pettis, 2005). These years marked a transformation within the gay rights movements. Gay rights activism moved away from the White-centered, apolitical stance of former gay rights activist groups such as Gay Association of South Africa (GASA) and Law Reform Movements, and new activists groups such as GLOW and OLGA aligned themselves with anti-apartheid groups such as the African National Congress (ANC) and the United Democratic Front (UDF) (Pettis, 2005). GLOW had a major impact on Black homosexual life since it provided advocacy and support for Black LGBT people, especially those in the townships (Donham, 1998). GLOW also adopted a policy of non-discrimination and welcomed people from all ethnicities, which explains it popularity. OLGA membership was mostly White, middle-class people who stringently opposed anti-apartheid, and allied itself with the ANC and the UDF (Croucher, 2002).

However, the apartheid government continued to implement amendments to the Immorality Act of 1957, which was renamed Immorality Act of 1988, which further punished the LGBT community by implementing harsher punishments to already existing sexual "crimes." (Webster, 1996).

HIV/AIDS appeared in South Africa in 1982 (Avert, 2011). Gevisser and Cameron (1995) stated that the gay community was disproportionately hit by the virus (Gevisser & Cameron, 1995). During the 1980s and the 1990s South Africans had limited to access to antiretroviral treatment: 'But back home, the men who lived with this virus and those who cared were still too frightened to fight...But back home the state healthcare system said we could not have these drugs, they were too expensive... How strange. The state healthcare system does heart and kidney transplants and the medical aids schemes are happy to pay. But when it comes to this virus, another standard applies...' (Pegge, 1995: 308).

This restricted access prompted movements such as Treatment Action Campaign (TAC) and GLOW to implement programs such as, the Township AIDS Project (TAP) and the Gay Men's Health Forum, yet it was too late for many gay men such as Nkoli who would die from HIV/AIDS (Pettis, 2005). These were programs aimed at providing support and spreading awareness, as well as lobbying for access to life-saving antiretroviral treatment.

South Africa continued to impose conscription on all White males during the 1980s. Homosexual men and women in the military were subject to electric shock therapy, imprisonment and public humiliation, and beatings (Zyl, et al., 1999). Perpetrators used The Nationalist rhetoric of religious purity to justify their attack on homosexuals: ' "They come from a strange religion which seems to say: ‘If gays are going to hell anyway, then it’s okay if you ”¦ give gays hell on earth””that God will sanction such attitudes and behaviour and deeds." ‘(Zyl et al., 1999: 68).

The LGEP continues to investigate cases of sexual abuse in the South African Army (Butler and G. Ashbury, 2005).

The 1990s and Post-apartheid legislations

With the release of Nelson Mandela on February 2, 1990 and the unbanning of the ANC, UDF, and other organizations, LGBT movements such as GLOW and OLGA were able to engage in political discussions, which would include sexual freedom as a fundamental human right in the new constitution. In 1996, South Africa's new Constitution made discrimination based on sexual orientation illegal, which makes South Africa's Constitution one of the most progressive in the world in terms of personal freedoms. The Constitution states that: ‘No person shall be unfairly discriminated...on one or more of the following grounds...colour, sexual orientation...' (Sanders, 1997: 105).

The 1998 Employment Equity Act 55 1998 ensured that employers could not discriminate employees based on sexual orientation (Butler and Astbury, 2005). The 1996 South African Schools Act was implemented to ensure that schools were more inclusive.

On December 1, 2006 the South African government passed the Union Bill, which legalized same-sex marriage, making South Africa the first African nation to do so (Alexander, n.d). This made homosexual couples to achieve parity with heterosexual couples for the first time. It also allowed spouses to make decisions on each other's behalf, receive alimony, and were granted the right to adopt children (Alexander, n.d.).

However, despite all the positive advances in legislation, homophobia and discrimination still persists in the South African society. The new legislations showed that LGBT people needed government protection from discrimination. These new legislations expose the extent of which homophobia pervades South African society. LGBT students are still being bullied and workers are still confronted with homophobic sentiment (Butler and Astbury, 2005).

One of the most disturbing statistics is the prevalence of corrective rapes against lesbians (Fihlani, 2011). The statistics showed that from 1998 to 2011 there were 31 lesbian murders and only two convictions. The LGBT rights group, Triangle said it recorded ten rapes per week in the Western Cape (Wesley, 2012). Many Lesbians say that they lived in fear of getting raped: “Everyone is scared," she says”. "We have seen an increase in attacks against lesbians in recent months. Everyone we speak to is afraid that they might be next.' “(Fihlani, 2011).

Victims said that the police forces are apathetic to their cause and did not take their cases seriously (Fihlani, 2011).

Groups like LGEP, Triangle, OUT and other organizations provide support, health and social development programs, and legal support. These organizations are essential for the well being of LGBT people since they are faced with a society that is rife with homophobia and in which heteronormativity (idea that heterosexuality is the normal form of sexuality) prevails.

Conclusion

This essay has examined legislation that has affected LGBT people living in South Africa. It has also briefly examined the challenges faced by LGBT communities, and the government protection that is available to them. While government legislation is supportive of the LGBT community, South African society is still battling with homophobia; corrective rape perpetrators are still unpunished, employers and students are still harassed for their sexuality. Also, HIV/AIDS is still a prominent threat for gay men and social stigma makes it even harder for gay men to receive treatment (Avert, 2011). However, there have been many advances since the dark days of apartheid and Immorality Acts, LGBT people are now protected, not persecuted, by the government. LGBT movements such as GLOW, OLGA and LGEP have done distinguished work in creating awareness through gay pride parades. For most if its history the LGBT community has had to hide in the shadows, invisible to the public, now it has the opportunity to been seen and heard, and continue their fight for freedom and equality.