Lesbian & Gay Marriage in South Africa: Part 2 – Second Class Citizens

Despite being legally afforded equal rights in South Africa, same-sex couples continue to be treated like second-class citizens by our government.

While we remain the only country in Africa to boast full marriage equality under the Civil Unions Act of 2006, how does this translate into everyday life for LGBT South Africans?

In the first article in our two part series, we looked at lesbian couple Vaivi and Sape Swartz‘ experiences in adapting traditional African marriage customs to tie the knot.

Now, they, and others, reveal how Home Affairs officials discriminate against same-sex couples, in what appears to be a rampant and ongoing denial of their constitutional rights.

Vaivi and Sape celebrated their union with friends, family and their community in a loving wedding ceremony in December last year. To legally register their marriage they approached the Department of Home Affairs, which employs marriage officers to provide this service to the public.

To their shock, the couple’s attempts to simply make an appointment were mortifying and infuriating. They travelled to and queued (for up to two hours at a time) at four separate branches of Home Affairs in Tshwane, only to be repeatedly turned away with openly homophobic disdain.

According to Vaivi, the treatment they received – from the outsourced security company (which they named as KSA Security) personnel to the Home affairs supervisors – was “negative, self-entitled, apathetic, mocking and homophobic.”

One security guard asked the couple why two women would want to get married when there are so many men available, and even went so far as refusing them access into the building until they stood their ground and demanded entry.

Inside, the service was no better. They were at times told that the branch “doesn’t do same-sex unions” and at others given feeble excuses. These included that their appointment could not be made because there was no petty cash to purchase diaries. The couples’ offer to buy dairies for the staff was refused.

The women have no doubt that their experience didn’t just reflect general (equal opportunity) incompetence from Home Affairs but was indeed fuelled by homophobia.

“The saddest part was having our relationship mocked by the staff and security guard,” said Vaivi. “Staff were calling one another from counter to counter whispering about us, how we are two women getting married. The staff were so proud to turn us away based on irrelevant reasons and the supervisor proudly supported them.”

At one branch, after queuing, they were told that appointments for same-sex marriages could only be made on specific days of the week, and not on that day.

“It was exhausting and made us lose faith in the rate of progress in our country. We thought that by now people would be better informed especially in government facilities,” said Vaivi.

You might be hopeful that the experience could be limited to Tshwane, but not so. Dr Zelia Sofianos and her then fiancé, Megan Brook, also tried fruitlessly to make an appointment to marry at Home Affairs offices in Ekurhuleni.

They were told by both the Edenvale and Germiston branches that the solemnising of same-sex marriages was not done there. Their only glimmer of hope, according to officials, was the office in Nigel, an hour away, which “might” be able to help them.

“It was the humiliation and feeling of discrimination which affected us both emotionally,” said Zelia. “We had believed that our country was steps ahead of the rest of the world when it comes to equality, regardless of sexual orientation.”

Based on reports we’ve received over the years from devastated same-sex couples around the country, this phenomenon is likely widespread and possibly worse in small towns and more rural areas.

The reason why officials can get away with this outrage is because the Civil Union Act allows Home Affairs marriage officers to “opt out”.

They may inform the Minister of Home Affairs, in writing, “that he or she objects on the ground of conscience, religion and belief to solemnising a civil union between persons of the same sex, whereupon that marriage officer shall not be compelled to solemnise such civil union.”

Now, regardless of the constitutionality of this clause (how can civil servants “opt out” of providing services to select members of the public on the basis of personal views?), the department clearly still has an obligation to provide marriages officers at its branches to offer this service.

The reality, however, is that same-sex couples are being forced to queue, travel, waste their time and possibly lose income in an effort to receive a service that is otherwise freely provided to other citizens. This is not mere inconvenience; this is nothing less then discrimination.

In addition, these experiences are humiliating and strip same-sex couples of their dignity; they reinforce the idea that LGBT people are less than others and not entitled to equal treatment.

There’s further emotional damage in that what should be a happy, affirming and life-changing event becomes tainted by rejection, shame and that sense of “otherness” we’ve all felt at some point.

Mayihlome Tshwete, Spokesperson for the Department of Home Affairs, responded to questions from Mambaonline about its application of the Civil Union Act. According to Tshwete, Home Affairs has no knowledge of any problems faced by same-sex couples when trying to get married. “No such complaints have been brought to the attention of Head Office,” he said.

Could Home Affairs perhaps be facing a problem sourcing sufficient numbers of LGBT-friendly marriage officers? Not according to Tshwete. We asked if the department can supply marriage officers in each Home Affairs branch who are willing to officiate same-sex civil unions / marriages.

He replied, “Yes.” This is either an outright lie or Home Affairs is disturbingly unaware of what is going on at its branches.

Mambaonline has evidence that contradicts Tshwete’s claims and, according to both couples we spoke to, complaints were in fact made to senior officials in the department.

Tellingly, Tshwete was unwilling to supply a list of offices that are confirmed to offer the service to same-sex couples. (It’s quite possible that the department does not actually know how many of its marriage officers will serve lesbian and gay couples or where they are located.)

“On the one hand the Constitution claims that we all have the right to equal access to services at Home Affairs, and on the other individuals at Home Affairs can choose not to solemnise a union because it is between a same-sex couple,” noted Zelia.

The SA Human Rights Commission (SAHRC), which should be there to protect our rights, doesn’t seem to see the issue as a serious one. After Zelia filed a complaint with the SAHRC, it disappointingly chose not to pursue the matter.

In a letter sent to her, SAHRC Provincial Manager Chantal Kisoon said the commission had met with Home Affairs about her case.

The SAHRC was told by Home Affairs that when a Civil Union marriage officer is not available at a branch, LGBT clients are provided with “alternative officials” who can assist them, or are “directed to alternative branches,” or failing that, the department “will arrange an official to attend on the branch where the client is, at a scheduled date and time.”

Based on the experiences of the couples in this article (which span seven branches in Gauteng), and on previous reports we’ve received, these options are not being offered by Home Affairs officials. Despite this, the SAHRC simple accepted what they were told.

According to Kisoon, “the commission is satisfied that, reasonable measures are in place to accommodate the needs of all, without unfairly or unduly compromising the rights of either part.”

She added: “In view of the above, the commission will close your file in this matter.”

The decision was taken without engaging further with Zelia or properly investigating what is really going on. It is clear, once again, that LGBT equality has been given short shrift and remains secondary to other human rights issues in South Africa.

Zelia, who says she was made to feel like a “second class citizen”, is uninterested in dealing with Home Affairs any further. She and her fiancé decided to pay for a private marriage officer to marry them – an expensive option that may not be available to LGBT couples without resources. The couple were married earlier this month.

A determined Vaivi and Sape were finally able to secure an appointment to have their marriage officiated at Home Affairs after they contacted Gauteng Provincial Manager Albert Matsaung in desperation.

They called him while at a central Pretoria office on the 7th of January and, to the furious objections of the supervisor, put him on their cellphone speaker. It was only then, when he demanded that the supervisor serve them, that an appointment was begrudgingly and angrily made.

The couple were officially married at Home Affairs on the 11th of January, with their fathers in attendance as witnesses.

“The final experience was overwhelming,” Sape revealed. “We could not believe that we were finally done and the struggle was not in vain.

“It is important for government to start sensitising all their departments because most of the people we spoke to have no idea what a civil union or same-sex marriage is or what a lesbian is,” she said.

“On paper and in policies all government facilities and departments provide equal treatment and do not discriminate against anyone but in reality they literally make you feel bad for asking for what you are entitled to as a citizen of South Africa,” Sape added.

What do I do if a Home Affairs office refuses to officiate my same-sex marriage?

1) Demand your rights. Don’t back down. Insist on an option that will suit you.

2) Demand to speak to a supervisor. If that doesn’t help, contact a provincial manager and head office. (Click here for contact details).

3) Let us know at info@mambaonline.com. We are compiling a dossier on these incidents to present to government and the Department of Home Affairs.

4) File a complaint with the SA Human Rights Commission. The more complaints they receive the more likely they are to do their job and investigate. (Click here for a complaint form)