Justice Edwin Cameron: African LGBTIQs are standing up

In April 2008, the body of 31-year old Eudy Simelane, a soccer player on South Africa’s national women’s team, was found in a field in KwaThema township outside Johannesburg.

She had been gang-raped and died from multiple stab wounds.

She is one of many victims in a series of hate-based rapes and murders targeting black lesbians that have plagued our country.

On the 7th of April, the inaugural Eudy Simelane Memorial Lecture was hosted at the University of KwaZulu-Natal’s Ujamaa Centre (in partnership with The Other Foundation, the Gay & Lesbian Network, and the KwaZulu Natal Christian Council).

Constitutional Court Justice Edwin Cameron, Africa’s only openly gay and openly HIV positive judge, gave this inaugural address:

It is nearly eight years since Eudy Simelane’s death. Tonight we gather to mark cruelty, hatred and injustice. We mark the cruelty of a world that denied this beautiful, talented person her life, a world whose hatred suppressed her voice and extinguished her capacity for love and vigour and energy: a world that hated and despised her because she was herself – an openly, proud lesbian.

But we also gather with a positive purpose – to pay tribute to extraordinary courage and a beautiful life. We gather to celebrate Eudy’s life as someone who embraced her own sexual orientation; who lived openly in her own township, KwaThema, as a lesbian, who played a beautiful, brave game of soccer – and whose courage made it easier for those who followed her to live their lives as themselves.

My theme tonight is not the destruction of Eudy’s life – but the hope her life engendered.

So the evening, and this lecture, have both bitter and sweet in them. We hang our heads in grief at an unspeakable act of cruelty and violent destruction, and the terrible loss it inflicted – not only on Eudy’s friends and family, but on all of us. But we also raise our heads in pride at Eudy’s courage and her truthfulness, to herself and to humankind. And we honour her life of achievement and integrity.

In the eight years since Eudy’s tragic death, much has changed – the debate about lesbians, gays, bisexuals, transgender, intersex and queer (LGBTIQ) people has come electrically alive in Africa. One is almost tempted to say: her death and her suffering were not in vain.

This is in large part because attacks on people like Eudy have drawn attention to an inescapable truth: that sexual and gender diversity exists in Africa – and that it is an ineradicable part of the beauty of this continent.

And increasingly, African LGBTIQs are standing up. They are speaking out. They are becoming visible.

The revolution started shortly after Eudy’s death, with an act of astonishing courage on the part of two Malawian men. In late December 2009, Steven Monjeza and Tiwonge Chimbalanga declared their intention to get married. The response was heartless, and extreme. They were arrested, imprisoned, paraded in front of a jeering public, and held without bail. Eventually, to rousing cheers, they were given the maximum sentence of 14 years in prison.

All this for love – on a continent that has suffered famine, flood, malgovernance, dictatorships, military coups, corruption, genocide and civil wars. As Archbishop Tutu has said, amidst these pressing problems, the least of Africa’s concerns should be same-sex love.

But that is to move forward too fast. Let us first pause, and retrace history. For, if we do not know our history, we risk not knowing ourselves.

Our oppression as LGBTIQ people has deep roots. And regrettably the hatred shown toward us remains strong and rife.

History

We have been accused of –

• Embodying an abomination
• Practising sin (in June 2015, after the US Supreme Court granted equal marriage to same-sex couples, in Obergefell, Ms Zizipho Pae, a University of Cape Town students’ council member, protested: “We are institutionalising and normalising sin! Sin. May God have mercy on us”)
• Being immoral
• Acting as criminals
• Being mentally sick.

In reality, same-sex orientation is a simple variant – between 5% and 10% of every race, every continent, every culture, every language, every religion has some measure of same-sex orientation. All classes and sectors; every school, community, congregation, neighbourhood; every family has LGBTI members.

Every family with ten or more members probably has at least one person who is partly or wholly same sex-oriented – they just don’t know it.

Why then has the struggle for justice for LGBTIs been so painful, so grievous? Why has there been so much misunderstanding, ignorance, hatred, violence, persecution and destruction?

There are two principal reasons –

• The first is that our difference resides in our sex and sexuality – in our sexual functioning. And sex and sexuality have always been profound sources of reproach, inhibition, fear and condemnation.
• The second is that LGBTIs are invisible. Despite stereotypes, it is impossible to tell who is same-sex oriented just by looking at a person’s appearance or behaviour.

But in Africa, and elsewhere, open debate about sexual functioning is starting to dispel many myths. And people like Eudy Simelane, Steven Monjeza, Chiwonge Chimbalanga and thousands of others in Africa have been asserting who they are and why they are entitled to live their lives without indignity and fear.

Our narrative must pause to understand why lesbian women are particularly vulnerable (with gratitude to the work of the Human Dignity Trust in London):

LGBTIs are not a homogenous group. Lesbians, as a sub-group, experience distinct and additional human rights violations compared to gay men. For lesbians, the “intersectionality” between discrimination against women and against gays and lesbians “creates a particularly lethal combination”.

As I will note later, homophobic and transphobic violence are forms of patriarchal social control – and are directed with particular anger and force at same-sex oriented woman who dare challenge patriarchy.

Homosexuality is often seen as “an assault on both the gendered structuring of society and the institution of the traditional family”. But lesbians in particular are “a threat to men’s position in society; choosing to have sex with other women can be seen as a rejection of male ownership of their bodies, as well as disconnecting sex from reproduction.”

Economic disempowerment further exacerbates lesbian vulnerabilities. When women lack the economic means to lead independent lives they depend for their survival on family members and communities. Lesbians who are open about their sexual orientation face greater risks from stigma and ostracism – for how can they survive economically without the support of their family? These pressures mean lesbians may not be able to leave violent or threatening domestic environments.

• Both gay men and women may feel constrained to marry someone of the opposite sex. But, precisely because of economic dependence, women may experience greater pressure. Once inside a constrained opposite-sex marriage, women are more at risk of human rights abuses because of male/female power imbalances. In addition, lesbians who give birth to children within marriages experience further pressure not to reveal their homosexuality. They may be terrified – all too realistically – that they might lose access to their children.
• And, interestingly, there is a “significant correlation between the criminalisation of homosexuality and gender inequality.”
• Lesbians often find themselves uncertain about laws that criminalise homosexuality (or have been used to criminalise homosexuality). It may not be clear whether they apply to lesbians. This is a cause of further vulnerability.
• Lesbians are subjected, horrifically, to rape that is supposedly designed to “cure” them. The rapist may be a family member. Researchers report that the practice is seen as a “disciplining project”. Even though South Africa has some of the world’s most powerful laws protecting sexual orientation, we are also the country with the highest level of “corrective rape”. Amidst our glory, this is our profound shame. We must each do much more to implement the laws and to extend actual State protection for lesbians.
• A particular vulnerability for women sports players is that many assume that women playing sports must be lesbians. So there may be more scrutiny of and hate-acts towards women sports players – sometimes resulting in summary dismissal from sports teams, even at the national level.

More even than gay men, these are the grim realities that Eudy Simelane faced in KwaThema, where she lived – a terrible fleshly vulnerability, a terrible exposure to hatred and brutality and ignorance and violence. And like Eudy, many lesbian women continue to face these fears.

Yet there is hope. There is no doubt that change is coming to our continent and the world.

The growing consciousness of LGBTIQ in Africa is in part due to the fact that, in 1994, South Africa became the first country anywhere in the world to provide express protection on the ground of sexual orientation.

South Africa and LGBTI equality

South Africa’s history offers an inspiring tale of unique engagement with sexual orientation.

In the 1980s, after coming out, I combined activism for LGBTI equality with my work as a human rights lawyer.

In our country’s struggle for constitutionalism, including LGBTI equality, the most inspiring and important figure was Simon Tseko Nkoli

He was from a township. He was poor. He was black. He was gay. He was all these things together. And his fight for justice encompassed all these things together.

Simon inspired popular struggle in the 1980s for justice for poor blacks under apartheid – and for all gays and lesbians in our country.

In 1990, after the convulsions of internal protests and uprisings that rocked the country in the 1980s, the apartheid government was eventually forced to turn to negotiation.

In the constitutional negotiations that followed, on behalf of the LGBTI community we argued that bigotry comes in many different forms – under apartheid, black people suffered invasions of privacy and dignity, enforcement of pass laws, laws barring sex and marriage across the colour line.

We could argue, and did, that oppression of LGBTI people was a further form of officially enforced hatred and ignorance. It should be rejected equally with race, gender and other noxious forms of discrimination. Many South Africans readily understood the arguments we made, and the constitutional negotiators accepted them.

The 1993 interim Constitution took effect on 27 April 1994. It reflected an historic world first – the equality clause contained the two words “sexual orientation”.

The 1996 final Constitution was the product of the first democratically elected Parliament of South Africa, sitting as a Constitutional Assembly. It drafted the final Constitution. That Constitution, under which we still struggle to create a just society, preserved protection from unfair discrimination on the ground of sexual orientation.

This evidenced the breadth, generosity and ambit of our constitutional negotiators’ commitment to equality and human dignity.

But the hard work lay ahead – only part of it was legal. In fact, the legal work was the easier part.

The Constitutional Court, in a ringing series of decisions, laid the groundwork for LGBTI equality. The importance of its decisions lies not merely in what they decided, but in the far-reaching doctrines of dignity, equality and inclusive moral citizenship they articulated. The Court laid down the following:

• Gays and lesbians are a permanent minority in society who in the past have suffered from patterns of disadvantage. Because they are a minority unable on their own to use political power to secure legislative advantages, they are exclusively reliant on the Bill of Rights for their protection.
• The impact of discrimination on them has been severe, affecting their dignity, personhood and identity at many levels.
• ‘The sting of past and continuing discrimination against both gays and lesbians’ lies in the message it conveys. This is that, viewed as individuals or in their same-sex relationships, they ‘do not have the inherent dignity and are not worthy of the human respect possessed by and accorded to heterosexuals and their relationships’. This denies to gays and lesbians what is ‘foundational to our Constitution and the concepts of equality and dignity’, namely that ‘all persons have the same inherent worth and dignity’, whatever their other differences.
• Continuing discrimination against gays and lesbians must be assessed on the basis that marriage and the family are vital social institutions. The legal obligations arising from them perform important social functions. They provide for security, support and companionship between members of our society and play a pivotal role in the rearing of children.
• Family life as contemplated by the Constitution can be constituted in different ways and legal conceptions of the family and what constitutes family life should change as social practices and traditions change.
• Permanent same-sex life partners are entitled to found their relationships in a manner that accords with their sexual orientation: such relationships should not be subject to unfair discrimination.
• Gays and lesbians in same-sex life partnerships are ‘as capable as heterosexual spouses of expressing and sharing love in its manifold forms’. They are likewise ‘as capable of forming intimate, permanent, committed, monogamous, loyal and enduring relationships; of furnishing emotional and spiritual support; and of providing physical care, financial support and assistance in running the common household’. They ‘are individually able to adopt children and in the case of lesbians to bear them’. They have in short ‘the same ability to establish a consortium omnis vitae’. Finally, they are ‘capable of constituting a family, whether nuclear or extended, and of establishing, enjoying and benefiting from family life’ in a way that is ‘not distinguishable in any significant respect from that of heterosexual spouses’.
• The decisions of the courts regarding gays and lesbians should be seen as part of the growing acceptance of difference in an increasingly open and pluralistic South Africa that is vital to the society the Constitution contemplates.
• Same-sex marriage is not unknown to certain African traditional societies – and ultimately, at the end of 2005, the Court required Parliament, within one year, to provide marriage equality.

It is often said that constitutionalism has not secured equality – or safety – for LGBTI persons. This is true.

Yet constitutionalism has given us some marked and incontestable achievements. They show what the Constitution has achieved:

• First, our rights as LGBTI people have received concrete embodiment in not only court decisions, but a wide swathe of legislation passed by the national and provincial legislatures.
• Second, and perhaps even more significantly, constitutionalism has created a widely disseminated internalisation of constitutional rights. This means that LGBTI young people regard themselves as bearers of rights. They feel entitled to equality, and to claim it. This is so throughout our country, urban and rural, townships and suburbs. This in itself is a hugely beneficial change from just a decade or two ago. It is one of the greatest achievement of constitutionalism. I defy those who say that the Constitution has achieved nothing for gays and lesbians. Has it achieved enough? No. Certainly not. But we do wrong if we under-estimate the beneficial impact of constitutional equality on LGBTI self-esteem, self-regard, inner dignity, social assertiveness and constitutional agency.
• Third, South Africa has served as a beacon to the rest of the world, including Africa, on LGBTI rights. Again, we would do wrong to under-estimate the effect on the rest of Africa of our attainment of constitutional equality. Our rights have been a significant catalyst for other African LBGTI communities.

Still, there remains a huge continuing disjunct – between what is promised and what has been attained. This is true of all our constitutional rights. It is not different from gender equality, racial subordination and lack of socio-economic rights. After 22 years, our Constitution’s promises have not been adequately fulfilled.

For LGBTIs, there remains widespread homophobia and prejudice. This finds expression in trivial condonations of horror – as when, in one of the Spud movies, the John Cleese character jokes smugly that he would like to give all lesbians “a thorough rogering”. This has its counterpart in enacted hatred, violence and murder against lesbians. The two are connected. Spoken hatred too often leads to its enactment in terrible deeds of destruction.

For us in the LGBTIQ community, three large challenges remain:

• First, silence and invisibility remain the great suppressants of progress. Unlike race and gender, our defining condition is generally invisible.
• Second, we continue to be inhibited by shame, because the very nature of our differentiation lies in sexual desire and sexual functioning – and so much shame still attends the subject of sex.
• Third, the strength and depth of the history of our repression, often impelled by biblical teaching, remain enormous. It is particularly important to emphasise tonight, on an occasion hosted by the Ujamaa Centre, to note the disgraceful and destructive role that those who call themselves men and women of the spirit, and of God, have played in persecuting lesbians and gays.

Despite these continuing obstacles, the manifestation of particularly black LGBTIQ self-identification throughout Africa heralds irreversible change across our continent.

What we still have to do – South Africa

For South Africans, there remains a huge shortfall in practice. Between our high constitutional ideals and the harsh reality, for many, of continuing discrimination, fear and disguised lives there is a glaring gap.

For transgender persons, phobia and violence remain high. And for lesbians, like Eudy, phobic rapes and murders remain a heartstoppingly fearsome reality.

What we still have to do – Africa

Africa still has 38 countries that hound, persecute, assault, imprison and charge LGBTI people.

All our neighbours (Lesotho, Botswana, Namibia, Zimbabwe, Swaziland), except Mozambique – continue to criminalise adult same-sex love.

For some, the horror of continuing persecution, imprisonment, violence and murder has actually increased with recent moves towards same-sex equality.

Why is this? There are two main reasons:

• The first is fear of change in circumstances of unstable transition (in Strijdom Square in Pretoria on 15 November 1988, a racist murdered seven people, and injured fifteen others – who could have believed that, just thirteen months later, SA would set out on the path to constitutionalism and democracy?
•  The second I mentioned earlier. It is that LGBTI identity and practices challenge traditional gender roles and authority. Our lives and our loves defy received concepts of sexuality. This means we also challenge gender-based hierarchies. We defy the patriarchy that lies like a heavy hand across much of our world and our continent. The result is rage, insecurity and violence.

These are the battles we continue to face as LGBTIs in Africa. But we have cause to end on a properly affirming note. Even in Africa’s most hate-filled spots, there have been irreversible gains.

• On 22 May 2014, the African Commission on Human and People’s Rights did something wholly unprecedented. It committed an emphatically gay- and lesbian-friendly act. It adopted Resolution 275. This condemned violence and other human rights violations against persons on the basis of real or imputed sexual orientation or gender identity. The historic importance of this resolution cannot be overstated. It is the first time that an Africa-wide body has taken a stand for LGBTI rights and protection.
• Then there have been heartening court decisions across the continent. Both a Kenyan court, in April 2015, and the Botswana Court of Appeal, just last month, have given recognition to LGBTI rights. They delivered judgements requiring that their governments must register NGOs supporting lesbian and gay rights.

The genie of African LGBTI pride can never be put back in the bottle. Eudy Simelane’s life was not in vain. Though we mourn the senselessness of the violence that took her young life, we know that what she believed in, what her life entailed and represented, will triumph in our continent and in our time.