Marriage (in)equality in SA | Home Affairs Minister responds to Mambaonline

Mambaonline recently published an article about Minister of Home Affairs Hlengiwe Mkhize rejecting a call by COPE MP Deidre Carter to remove a discriminatory provision in the country’s same-sex marriage law.

The controversial clause, Section 6 of the Civil Union Act, allows Home Affairs marriage officers to refuse to marry same-sex couples. The provision is seen by many as an unjustifiable license to discriminate against LGBT people.

We also revealed that of the department’s 1,130 marriage officers, 421 (around 37%) are currently exempted from performing civil union marriages.

Below is Minister Mkhize’s full response:

The Mambaonline article of July 12, 2017 raises very serious human rights issues which, necessarily, need understanding properly in the interest of all.

It helps to know that the Department of Home Affairs is among those in our democracy who took the lead in advocating for respect and dignity of the LGBTI (Lesbian, Gay, Bisexual, Transgender and Intersexed) community.

In 2016, the Department engaged in discussions with representatives of LGBTI communities. The outcome of which was agreement to work together to uphold both the rights of all persons and the democratic values underpinning the 1996 Constitution of the Republic.

On 7 June 2016 the Department announced, with LGBTI community representatives, a set of recommendations on comprehensive steps to be taken to address concerns raised regarding protection, promotion and projection of human rights of the LGBTI community in SA.

As reported jointly at the meeting of 5 September 2016, inroads were made in addressing legitimate concerns on the treatment, by some DHA officials, of issues relating to persons either lesbian, gay, bisexual, transgender or intersexed, especially when they visited our offices.

The Department went to the extent of setting-up a task-team with LGBTI representatives to address these issues. There was progress in this regard.

Internal communication was sent to all officials in a conscious drive to improve sensitivity and awareness and to cultivate uniform application of standards of practice at DHA offices in respect of services to LGBTI communities.

Attempts were made at these previous interactions to clarify requirements for registration of same sex marriages, among other things. A Practice Note was distributed to all staff and front offices for use as a guideline on matters relating to the alteration of sex description and other related civil matters.

The Department is improving on the enforcement of its Anti-Discrimination and Diversity Management policy. Officials participate in the National Certificate: Home Affairs Services skills programme, with one of its elements being improving sensitivity on LGBTI rights. In 2015/16, 407 DHA officials were thus trained, as an increase from 355 officials trained in 2014/15.

In discussions with the Department, what the LGBTI leaders had requested was clarity on the offices where marriages may be solemnised with dignity. This was to assist the LGBTI community to select appropriate offices. ‘Why is this important?’ In terms of the Civil Union Act, 2006 a marriage officer may not be compelled to solemnise civil union. Section 6 states that:

“A marriage officer…may in writing inform the Minister 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.”

This doesn’t mean, as alleged, that “service is simply not offered in many Home Affairs branches,” and that a legislative amendment is required. What this does mean is that we get to know in advance which objections were approved, on their merit, in advance, to plan better.

In response to the request for clarity received from the LGBTI community, a list of offices with marriage officers willing to conduct same-sex marriages was prepared so people know which offices to visit and for which services.

As can be imagined, we have a duty to protect rights of all, including legal rights of workers, in this case marriage officers.

The marriage process was redesigned in line with three principles, namely: Proper allocation of duties and responsibilities, for a more streamlined and clear process, and to increase process transparency; Clear accountability assigned in each step of the process, to promote responsibility of each Marriage Officer/Official handling the marriage register; and Continuous promotion of responsible behaviour by involved officials.

We remain committed to strengthening and sustaining our partnership with LGBTI stakeholders, understanding LGBTI rights are human rights.

Indeed what we need to do is to strengthen the DHA/LGBTI Task-team better to improve on the promotion of fair treatment, equality, and justice for all, irrespective of sex/gender orientation.

It was through this unity and cooperation that we worked together to stop the visit of the homophobic US pastor Anderson to our country.

The assumption that government will on its own transform society is at best dubious. To change society for all members of society, demands that we work with various sectors of society, and therefore we invite all role-players to come forward, sans antagonism, to engage with us on these matters of importance. Questions of identity, nation-building and imperatives to promote unity in diversity are never resolved overnight.”

Prof Hlengiwe Mkhize, Minister of Home Affairs

Editor’s comment

While we appreciate Minister’s Mkhize’s response to our article and her willingness to engage on this issue, there are a few points that require comment.

1. We, and other human rights defenders, do not accept the status quo of the current Civil Union Act. We assert that Section 6 is unconstitutional as it allows civil servants to discriminate on the basis of their personal or religious beliefs against a sector of society. The Constitutional Court’s 2005 ruling in favour of same-sex marriage intended to provide equal marriage rights to same-sex couples and the Section 6 provision included in the Civil Union Act defies this.

2. The Minister insists that Section 6 does not mean, as we stated in our article, that “service is simply not offered in many Home Affairs branches”. Based on reports sent to us by members of the LGBT community, this is exactly what it appears to mean. We have received reports that people continue to be turned away.

3. The minister argues that the department has provided a list of branches that offer same-sex marriage services “so people know which offices to visit”, as if this is an acceptable compromise. It is not. There should be no reason that ANY Home Affairs office does not offer equal services to every South African, regardless of their sexual orientation or gender identity. No member of the LGBT community should have to make more effort than other members of society to receive the same service from Home Affairs.

4. The mere existence of this list confirms that the service is in fact not offered in at least some Home Affairs branches. While the list is in theory a useful tool for same-sex couples it is not a solution to inequality.

5. Additionally, we have again received reports that this list of “Civil Union-friendly” branches provided by Home Affairs in September last year is out of date. At least one individual has told us they were recently not able to get married at offices included on the list. Mambaonline is investigating this. We have also requested an updated list from the department.

6. We thus urge Minister Mkhize to uphold our constitutional values, reconsider her stance and to work towards amending the Civil Union Act to remove Section 6. There is no justification for her continuing to support legislation that effectively makes the LGBT community second class citizens in our own country.

Luiz De Barros, Editor of Mambaonline.com