What does the Constitution have to do with it?

Everyday life continues to be a struggle for LGBT+ people who can’t rely on the rule of law to protect them against discrimination

The reality is that legal protection does not necessarily translate into social acceptance because you sit with people’s perceptions, their stereotypes, that people have grown up with from political, religious and cultural perspectives.”

In South Africa, the supremacy of the Constitution is held as the moral and legal compass by which citizens relate to each other. Founded in 1996 under the government of former President Nelson Mandela, the Constitution signifies South Africa’s commitment to ensuring that the human rights of all in the country are protected. Protection should mean – at the very least – the ability to live freely and without fear of discrimination or harm in any form. This, however, is often not the case. Many LGBT+ people live in fear with a persistent anxiety about being mocked, harassed, excluded, hurt and even killed.

According to a 2011 study by Osche, titled ‘Real Women’ and ‘Real Lesbians’: Discourses of Heteronormativity amongst a Group of Lesbians, South African Review of Sociology, one lesbian participant stated: “I think the Constitution is amazing, but, like I have said to other people too, the reality is that legal protection does not necessarily translate into social acceptance because you sit with people’s perceptions, their stereotypes, all of that, that people have grown up with from political, religious and cultural perspectives.” South Africa has also seen some of the most gruesome murders of LGBT+ individuals. These incidents are known to have been motivated by hatred for sexual and gender diversity.

Although government has, and still does, engage with these issues, the question of how to change mind-sets in a society that is still very patriarchal remains a difficult one. Patriarchy, according to feminist writer Bell Hooks, is a “political-social system that insists that men are inherently dominating, superior to everything and everyone deemed weak, especially females, and endowed with the right to dominate and rule over the weak and to maintain that dominance through various forms of psychological terrorism and violence”. It is this terrorism that the Constitution is contending with – fighting against.

There is an inconsistency between the Constitution and reality, as exemplified by the lived experience of a 28-year-old gay man living in the Johannesburg CBD. The way in which people are positioned within society with regards to race and class shapes their experiences differently, and in this case living as a coloured (mixed) working student makes for a nuanced experience of the world. He says: “I remember walking to the shop and as I approached the entrance I saw it was crowded with men. I realised they were drunk and I immediately felt hesitant to go inside. I decided to keep walking and forget about what I wanted to buy. As I passed, they started calling me derogatory names and whistling at me. If I went into the shop and something happened to me, I feel I would have been judged because I should know better than to claim a space that is not given to me.

As an LGBT+ person, of colour, I am constantly checking my surroundings to see where I should give way to avoid an assault. I know I am not welcome everywhere and the Constitution doesn’t seem like a solution to the everyday anxiety I experience. I can only call on the Constitution after I’ve been hurt, and what good is that?”

Ashton Sanders in 2016 Oscar-winning film, Moonlight, telling the story of young black man struggling through his identity and unstable family life (Photo courtesy of: A24)

His constant anxiety speaks of a neurosis that minorities live with, and can be explained by the “Minority Stress” theory cited by Meyer in 1995. It describes chronically high levels of stress faced by members of stigmatised minority groups. The most well-known causes of minority stress are interpersonal prejudice and discrimination. This discrimination is often sanctioned by those in dominant positions in society.

Osche’s review shares more insight into the way some LGBT+ people feel about how non-LGBT+ use the Constitution. Another participant says: “My take is the Constitution is fantastic … [but] in terms of the reality of implementation, in terms of how society behaves regardless of the constitution, is another problem.”

Last year the Gauteng Provincial government led by Premier David Makhura hosted a dialogue with the LGBT+ community in an attempt to address the various issues it is facing. The event was filled with robust debate which unapologetically foregrounded LGBT+ issues in the province. The aim was to make Gauteng the most LGBT+ friendly province in South Africa. Issues of education, police sensitisation, healthcare and government support were discussed.

Setting up an LGBT+ helpdesk was committed to by the Office of the Premier for the purpose of providing support and protection. The desk is not yet operational. The reality of the LGBT+ community seems unchanged. Outside of these efforts, LGBT+ issues remain largely not a priority on government agendas.

Sure, the process of change is gradual. The political will to give attention to issues affecting minority groups, within the framework of a dominant patriarchal ideology that operates at all levels of society, is commendable. The attention given, however, doesn’t amount to much if it’s not backed by the will to implement policies and possible solutions.

When considering the social structures that LGBT+ individuals exist in globally, it is understandable that many experience a life of fear and anxiety. There is a rising tide of hate in many communities across the world. Some examples include the infringement on transgender rights in the USA, when President Donald Trump announced that the recruitment of transgender individuals into the military would be halted. Other LGBT+ human rights violations have been documented in Indonesia, Chechnya, Russia, and across the African content. This problem is global in nature. This discrimination does not discriminate.

In a society that officially and unofficially sends a message to the LGBT+ community that their lives are less valuable or important than the heteronormative status quo, the declining health of people who spend their lives in protest against injustice remains a reality. The burden of care falls back to them since healthcare comprises and denies their rights to access healthcare. In light of all that has been achieved, the lives of LGBT+ individuals don’t seem much better as they navigate the intersections of race, class, gender and ability.

The implementation of the world class Constitution celebrated the world over is a great feat, especially in a country with a history as volatile as this. Now we wait to see when the hearts, minds and attitudes of South Africans in how they treat their LGBT+ counterparts will also come to be celebrated.


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