South Africa has one of the world’s most progressive constitutions concerning LGBTI rights, but the lived reality of LGBTI people in South Africa evinces a stark gap between the law and its application. Given the progressive legal framework in South Africa, Human Rights Watch notes that ‘legally speaking, lesbians, gay men, and, to a more limited extend, transgender people have achieved equality’. However, practically speaking, LGBTI people in South Africa are unable to claim these rights and are subject to numerous human rights violations. ‘The legal victories have done little to address the underlying causes of discrimination and subordination in South Africa’, as emphasised in the book Outside the Safety Zone. 

The UK Home Office’s description of the situation of LGBTI persons in South Africa is available on pp. 40-43 of the 2010 Home Office Country of Origin Information Report on South Africa.

High levels of verbal, physical and sexual abuse

South Africa evinces persistently high levels of various forms of discrimination, ranging from structural disadvantages, to threats and insults, as well as physical violence and assassinations.

In 2008, the openly lesbian national soccer player Eudy Simelane was beaten, gang raped and stabbed to death in Kwa-Thema township. In 2009, two perpetrators were given prison sentences (but the role of sexual orientation was rejected by the court), marking the first conviction in a considerably higher number of attacks against LGBTI persons. The lesbian woman Girlie Nkosi was repeatedly stabbed in KwaThema in 2009. In the case of murdered lesbian activist Noxolo Nogwaza, who was raped, stabbed with glass and beaten with pieces of concrete in Tsakane in 2011, witnesses fear coming forward and no arrests have been made. At least 7 people were murdered between June and November 2012, reports Amnesty International: Neil Daniels, Thapelo Makhutle, Phumeza Nkolonzi, Hendrietta Thapelo Morifi, Sanna Supa, Ntombana Mafu and Sihle Sikhoji. Attacks originate from close friends and family, as well as strangers.

The Joint Working Group, a national network of LGBTI organisations, commissioned several studies on empowerment, conducted with local organisations in Gauteng, KwaZulu-Natal and the Western Cape between 2002 and 2006. Reviewing the surveys in their 2012 Equality Report, the South African Human Rights Commission diagnosed ‘a depressing picture’, given that all three studies reveal verbal, physical, sexual and other forms of abuse. These three studies did not include transgender or intersex persons. A fourth study was conducted in a more rural setting in the North West Province between 2009 and 2010.

Other forms of discrimination include structural and psychological violence in various contexts. Regarding health, sexual orientation can result in lack of access to medical treatment. For instance, 7.6% of black gay men and 8.4% of black lesbian women experienced refusal of medical treatment in Gauteng province, as stated in Chapter 15 of the book From Social Silence to Social Science: Same-sex Sexuality, HIV & AIDS and Gender in South Africa. Prof Vasu Reddy, a co-editor of the book, emphasises self-acceptance, societal acceptance, unemployment, lack of upward mobility and lack of access to justice as further issues facing LGBTI persons. Further information can be accessed on the website of Gay and Lesbian Memory in Action GALA, an NGO collecting and disseminating the contemporary experiences of LGBTI persons.

There is no empirical data on violence against intersex people. Information on the experiences of trans persons is limited to anecdotal evidence, such as the experiences reported to Gender DynamiX, an NGO focussing on the rights of trans persons, or this blog article on the shooting of Drag Queen Daisy Dube in Johannisburg in June 2008. Violence against LGBTI communities has been a feature of life before, during and after the transition to democracy. This violence is rooted in the patriarchal nature of South African society and the economic inequalities and institutionalised discrimination experienced under Apartheid and colonialism.

Intersectionality: Gender, race and class background

The risk and intensity of discrimination experienced due to sexual orientation varies with gender, race and class background. ‘Violence is not experienced equally across class, race and gender lines’, as Susan Holland-Muter emphasises in Outside the Safety Zone.

The number of attacks against lesbians and transgender men (perceived as women who do not conform to dominant sexuality and gender norms) is particularly high, as emphasised by Human Rights Watch’s report Violence and Discrimination against Black Lesbians and Transgender Men in South Africa, and Amnesty International’s report Making Love a Crime. Sexual assault in these cases often takes the form of so-called ‘corrective rapes’, perpetrated with the purported aim to ‘cure’ black lesbians of their sexual attitude. Integrated Regional Information Networks report estimates of 10 cases of ‘corrective’ rape in Cape Town per week. The term ‘corrective rape’ is highly problematic: it portrays sexual orientation as something to be adjusted and separates these rapes from the context of violence against women in general. South African activists and INGOs explain that the disproportionately high number of violence against non-conforming women must be seen in the context of high levels of gender-based violence in a patriarchal society and South Africa’s history of violent conflict. 

Discrimination on the basis of ascribed or expressed gender and sexual orientation intersects with race and class background: black lesbians and trans men in townships and rural areas are relatively more vulnerable to attacks than white and middle-class LGBTI. This is emphasised by 1) OUT LGBT Wellbeing in a report on homophobic victimisation in Gauteng, 2) the One In Nine-Campaign in an interview with Amnesty International, 3) in a Human Rights Watch report on state-sponsored homophobia in Southern Africa, 4) in the 2012 Equality Report of the South African Human Rights Commission, diagnosing that violent attacks and ‘corrective’ rape are ‘highest in the poorest communities’, 5) the book Outside the Safety Zone, and 6) a Human Sciences Research Council Policy Brief on Hate Crimes and Homophobia, highlighting that ‘black lesbians living in poor neighbourhoods are the most vulnerable to different forms of sexual attack and are the most likely to be exposed to community rejection and policing, and to homophobic attacks, including assault, rape and murder’. In this article, South African LGBTI activist Bontle Khalo discusses LGBTI discrimination in Kwa-Thema township. 

Police brutality, state failure and judicial inertia

Police failure to protect the human rights of LGBTI takes several forms: Primary perpetration of human rights violations, secondary victimisation (victim-blaming causing additional trauma), and inaction in cases of abuse by other actors.

Amnesty International’s report Making Love a Crime records instances of police abuse denounced by South African LGBTI activists, such as verbal and physical harassment during and after pride events in Johannesburg. Nonhlanhla Mkhize, Director of the Durban Gay and Lesbian Community and Health Centre denounces further instances of police abuse and irresponsiveness in the same report: The case of two lesbians who were arrested and sexually harassed by a police officer, and the case of a police refusal to investigate the beating of a gay man in his residence hall at university, as well as Mkhize’s own experience of homophobic attacks and inappropriate police response. Mkhize underlines that a key factor underlying the pattern of police brutality is the policing culture inherited from the apartheid era. Amnesty diagnoses that the government and judicial system fail to respond adequately to discrimination of LGBTI persons, given that ‘more times than not, cases are not adequately investigated, prosecutions do not occur, and victims are denied justice’.

This information is corroborated and complemented in Susan Holland-Muter’s Outside the Safety Zone: The section ‘Obstacles to reporting  violence against the LGBTI community’ enumerates ignorance of court officials, police refusal to take on cases, fear of secondary victimisation, lack of faith in the criminal justice system, fear of publicity, normalisation of violence and lack of knowledge about rights. A second section on ‘Challenges to state service provision in response to violence against LGBTI communities’ denounces general malfunctioning and lack of service delivery, as well as more specific obstacles experienced by LGBTI communities ranging from discriminatory attitudes to lack of political will expressed in victim blaming, secondary victimisation and low conviction rates. The lack of services to LGBTI communities in rural areas and contexts with dominating conservative views is documented as particularly high.

The National Task Team, set up to address gender and sexual orientation-based violence against LGBTI people generally and discriminatory dynamics operating in the criminal justice sector in particular, is ‘dormant and ineffectual’, as noted by Human Rights Watch in their 2014 World Report.

Public attitudes

The Human Sciences Research Council Review Pride and Prejudice: Public attitudes toward homosexuality, analyses data derived from the South African Social Attitudes Survey (SASAS), finding that over 80% of the population consider gay and lesbian people as ‘un-African’ and deem ‘sex between two men or two women always wrong’.

Anti-LGBTI discourse and behaviour also emanates from high state functionaries. In 2008, South African journalist and politician Jon Qwelane published an article entitled ‘Call me names, gay’s not okay’ in the Sunday Sun, in which he compares gay marriage to bestiality. As Melanie Judge emphasises in a Mail&Guardian article, Qwelane answered accusations of hate speech with a constitutional challenge to the Equality Act. Qwelane’s case was which started in 2008 was decided on appeal in November 2019. The Supreme Court of Appeal (SCA) in South Africa held that a law prohibiting speech that is hurtful was an unjustifiable limitation of the right to freedom of expression. See Qwelane v. South African Human Rights Commission.  In 2010, President Jacob Zuma appointed Qwelane as High Commissioner to Uganda. Zuma himself was accused of rape but acquitted of the charges in 2006, as described in this Mail&Guardian article.

Furthermore, LGBTI communities struggle with religious opposition to LGBTI rights. As Human Rights Watch notes in a 2011 report, conservative churches tend to disseminate a view of LGBTI as ‘un-Christian’. In an Amnesty International report, Prof Vasu Reddy describes homophobia emanating from churches through portrayals of homosexuality as ‘decadent, abnormal and pathological’. 

Refugee Appeal No. 76484, New Zealand: Refugee Status Appeals Authority, 19 May 2010

This is the appeal of a national of South Africa, born in Pakistan, against the decision of a Refugee Status Officer declining the grant of refugee status in New Zealand. The appeal was dismissed by the Refugee Status Appeals Authority, asserting that the appellant’s claims are not credible and that there is no objective risk of persecution due to his sexual orientation or ethnicity.

Refugee Appeal Board Decision (Nigeria), South Africa: Refugee Appeal Board, 13 May 2002

This is the appeal of a Nigerian citizen against the decision of a Refugee Status Determination Officer declining the grant of refugee status in South Africa. The appeal was dismissed by the Refugee Appeal Board, asserting that a well-founded fear based on the appellant’s political opinion and homosexuality had not been proven. 

Refugee Appeal Board Decision (Tanzania), South Africa: Refugee Appeal Board, 5 December 2011

This is the appeal of a Tanzanian national against the decision of the Refugee Status Determination Officer declining refugee status in South Africa. The Refugee Appeal Board dismissed the appeal, finding that the discrimination the appellant suffered on account of his homosexuality did not amount to persecution.