Continuing with South Africa’s current separate marriage dispensation reinforces the marginalisation and stigmatisation of LGBTQIA+ persons. Instead, the Women’s Legal Centre and Triangle Project urge government to step up their current efforts to reform marriage and relationship laws by bringing all interpersonal relationships under one legal umbrella that recognises people’s diverse social, religious and cultural identities beyond their gender, sex and sexual orientation.
LGBTQIA+ people, also known as people with diverse sexual orientations, gender identities, gender expressions and/or sex characteristics (SOGIESC), are not a homogeneous population.
The experiences of a black Muslim, bisexual, transgender womxn living in a rural area who is seeking access to marriage services and protection of their relationship rights are vastly different from that of a white Christian gay man living in an urban city seeking the same services. Their experiences are informed by structural racism, heteronormativity, cisnormativity, prejudice and patriarchy that continue to permeate our society.
LGBTQIA+ people represent diverse groups not only in terms of their sexual orientations, gender identities, gender expressions and sex characteristics, but also in terms of race, culture, religion, language, geography, health status, socio-economic circumstances, occupation, dis/ability, and other characteristics.
If government is serious about complying with its constitutional obligations in its reform of marriage laws in South Africa in order to undo the legacy of discrimination and prejudice specifically directed against people with diverse SOGIESC, and protect the rights of the most vulnerable and stigmatised within our society, then it is imperative to develop an equal and non-discriminatory marriage framework that recognises the diversity of South Africans’ relationships and lived realities.
Parallel marriage laws not consistent with Constitution
South Africa took an important step towards relationship equality with the adoption of the Civil Union Act 17 of 2006, which legalised same-sex marriage. Last year this law was also significantly amended when the discriminatory Section 6, that had allowed marriage officers to refuse to solemnise same-sex marriages, was repealed. As a result, Home Affairs officials may no longer exempt marriage officers from solemnising same-sex or same-gender marriages because of their religious beliefs as this was unfairly discriminating against same-sex and same-gender couples. In our view, the repeal of the unconstitutional Section 6 of the Civil Union Act also removed one of the reasons why a separate same-sex marriage law was adopted in the first place: It was to allow those who hold strong heteronormative, cisnormative and homophobic beliefs to continue to lay privileged claim to marriage as a heterosexual institution, distinguishing it from other relationships that they believe should not have an equal right to solemnisation.
The DHA’s Green Paper on Marriage acknowledges the status quo of parallel marriage laws as not “consistent with the transformative nature of the country’s Constitution” and explores the possibility of structuring new marriage laws in three ways: as a single statute, an omnibus act and a parallel legislation (as is the case currently).
For Triangle Project and the WLC, the issue of the equal recognition and protection of the marriages and relationships of LGBTQIA+ persons, inclusive of their SOGIESC rights, does not necessarily reside in whether the new marriage statute is a Single Marriage Act with a universal set of requirements for all marriages, or whether it is an Omnibus Act with different chapters for different types of religious and cultural marriages. Our concern is that all persons, including LGBGTQI+ people, need to be recognised fully within their culture, tradition and religion when they choose to enter a marriage or protected relationship, regardless of their SOGIESC. It is important for the law not to force anyone, specifically those who have suffered and continue to suffer marginalisation, oppression and stigmatisation to choose between who they are and who the law wants them to be in order to seek and receive protection of their marriage or relationship.
Marriage officials, gender markers and pre-marital counselling
The WLC and Triangle Project acknowledge that all persons have the right to religious freedom. We emphasise, however, that the guarantee of freedom of religion does not equal the right to unfairly discriminate against others. Doing so would be contrary to our country’s value system that does not allow for prejudice and bigotry to guide the exercise of religious freedom.
For this reason, the WLC and Triangle Project, through the public engagement process with the Department of Home Affairs, have been alarmed with some stakeholders advocating for the reintroduction of the provision allowing marriage officers who are public employees (as well as those who are not but offering services and goods related to marriage) to have discretion on who they will solemnise marriages for and/or offer any other marriage services to. Essentially, they are asking the state to allow unfair discrimination in its provision of public services. We strongly caution against any consideration of reintroducing the repealed section 6 of the Civil Union Act tacitly or implicitly in the Green Paper or any future marriage legislation.
While we support broadening the scope for the designation of marriage officers, this cannot be allowed to continue a separate and unequal regime where objections to solemnise certain marriages will be tolerated simply because there would now be a broader category of persons who can and may be marriage officers.
Likewise, we recognise the benefits of counselling and therapy to assist in the strengthening of relationships and making informed choices if it is entered into freely by all parties. However, we note with alarm that the Green Paper is suggesting that premarital counselling should be made compulsory prior to couples being allowed to enter a valid marriage.
Our concerns with compulsory counselling is threefold: first, the proposal does not set out who the Department of Home Affairs envisages as the counselling service providers, second, such a compulsory requirement unnecessarily interferes with individuals’ ability to make decisions about their relationships – it is paternalistic, and third, we are concerned that without clear guidelines in respect of what the counselling must entail and who will provide said counselling, there is a risk that LGBTQIA+ people may be subjected to some form of conversion therapy exercised in the name of religion or particular belief systems that want to enforce their ‘accepted’ norms of marriage and relationship for everyone.
The United Nations Independent Expert on protection against violence and discrimination based on sexual orientation and gender identity (IE SOGI) has explained that so-called “conversion therapy”, is an umbrella term for harmful interventions of a wide-ranging nature, which are founded on the belief that an individual’s sexual orientation, gender identity or gender expression can and should be changed or suppressed if the individual does not comply with dominant norms. The harm that such practices cause for persons with diverse SOGIE is immeasurable and enduring, and certainly cannot be justified under the constitutional framework.
Lastly, the WLC and Triangle Project note that the Alteration of Sex Description and Sex Status Act 49 of 2003, which deals with the alteration (amendment) of an individual’s gender marker on the population register to reflect their gender identity, which amendment is reflected in an amended birth certificate and identity document, has been frequently misapplied. Within the context of marriage, couples married in terms of the heterosexual Marriage Act 25 of 1961, in which one of the partners amended or applied to amend their legal gender marker, have been forced to divorce even though they wish to remain married. In some instances their marriages have been unilaterally and unlawfully deleted by Home Affairs.
This has been happening because of the separate marriage regimes (different-gender couples vs same-gender couples) enforced by the system used by the Department to record marriages and the gender of persons on the national population register. These injustices have also been enabled by the current gender binary and heteronormative framework that fails to adequately provide for and cater to the needs of persons with diverse SOGIESC in the manner in which marriage is recorded and registered.
A progressive and inclusive marriage policy is critical
The WLC and Triangle Project stress that marriage laws must ensure and achieve marriage and relationship equality, rather than the current unequal and othering dispensation of a separate Civil Union Act for same-sex and same-gender marriages and unions.
Our law must recognise that all individuals, regardless of their sex, gender or sexual orientation, have the right to give expression to their culture, traditions and religion in their marriages, and that the law must recognise, respect and protect their right to do so.
This is the basis of substantive equality.
Written by Charlene May & Mandi Mudarikwa, Attorneys at The Women’s Legal Centre and Estian Smit, Research, Advocacy and Policy Manager at Triangle Project.