In South Africa, lesbian, gay, bisexual, and transgender (LGBT) individuals have the same rights as non-LGBT people. South Africa has a complicated and varied history when it comes to LGBT people’s human rights.
What factors have impacted the legal situation?
Traditional South African mores, colonialism, and the lasting impacts of apartheid and the human rights movement that contributed to its removal have all affected the legal and social status of between 400,000 and over 2 million lesbian, gay, bisexual, transgender, and intersex South Africans.
Is this always legal?
South Africa’s post-apartheid Constitution was the first in the world to make discrimination based on sexual orientation illegal, and the country was the fifth in the world to legalize same-sex marriage. To date, South Africa is the only African country that has legalized same-sex marriage. Couples of the same gender can also adopt children together and organize IVF and surrogacy treatments. LGBT individuals are protected against discrimination in work, the supply of goods and services, and many other areas under the law.
Do gay people continue to face abuse?
Nonetheless, LGBT South Africans, particularly those living outside of big cities, endure a number of obstacles, including homophobic violence (particularly corrective rape) and high HIV/AIDS infection rates.
Legality of same-sex sexual activity
The Cape Provincial Division of the High Court ruled on 4 August 1997, in the case of S v Kampher, that the common-law crime of sodomy was incompatible with the constitutional rights to equality and privacy, and that it ceased to exist as an offence when the Interim Constitution came into force on 27 April 1994. This judgment, strictly speaking, only applied to the crime of sodomy and not to the other laws criminalizing sex between men, and it was also only binding precedent within the Cape court’s jurisdiction. The Witwatersrand Local Division of the High Court ruled on May 8, 1998, in the case of National Coalition for Gay and Lesbian Equality v Minister of Justice, that the common-law crimes of sodomy and “commission of an unnatural sexual act,” as well as Section 20A of the Sexual Offences Act, were unconstitutional. On October 9, the same year, the Constitutional Court upheld this decision. The judgement applies retrospectively to activities performed after the Interim Constitution was adopted on April 27, 1994.
Despite the decriminalization of sex between males, the Sexual Offences Act established the age of consent at 19 for gay activities but only 16 for heterosexual conduct. The Criminal Law (Sexual Offences and Related Matters) Amendment Act of 2007 corrected this by codifying the law on sex offenses in gender and orientation neutral language and establishing 16 as the standard age of consent. [49] Despite the fact that the new legislation had not yet taken effect, the prior inequality was deemed illegal in the case of Geldenhuys v National Director of Public Prosecutions in 2008, with the judgement applying retrospectively from April 27, 1994.
