South Africa’s Parliament should affirm the promise of equality by opening civil marriage to all, regardless of sexual orientation, New York based Human Rights Watch said today in a letter to the South African speaker of parliament. On the eve of a historic vote, Human Rights Watch called on lawmakers to reject a bill restricting recognition of lesbian and gay couples to so-called civil unions, and instead support full marriage rights for all.
The bill creates the special status of “civil unions” for lesbian and gay couples, defined as the “voluntary union between two adult persons of the same sex to the exclusion, while it lasts, of all others.” Lesbian and gay couples would continue to be barred from civil marriage.
“Separate is never equal,” said Scott Long, director of the Lesbian, Gay, Bisexual and Transgender Rights Program at Human Rights Watch. “Post-apartheid South Africa has made giant strides toward ending legalised injustice. Its lawmakers should not endorse discrimination.”
In its letter to Speaker of Parliament Baleka Mbete-Kgositsile, Human Rights Watch noted that post-apartheid South Africa has been in the vanguard of extending human rights protections in a range of spheres, including sexual orientation. South Africa’s 1996 constitution was the first in the world to include protections against discrimination based on sexual orientation. Since then, successive court decisions based on the constitution’s Equality Clause have overturned the country’s sodomy law and recognised gay and lesbian couples’ rights in areas including: immigration; pensions and benefits; and child custody and adoption.
The current bill comes in response to a Constitutional Court ruling last December. In the case Minister of Home Affairs and Others v Fourie and Bonthuys and Others, the Constitutional Court held that barring same-sex couples from the rights and responsibilities of marriage was unconstitutional. Parliament was given 12 months to correct the inequality by legislation, or South Africa’s laws on marriage would change automatically to end the discrimination on December 1, 2006.
While giving parliament the opportunity to act against discrimination through the democratic process, the Constitutional Court’s decision stressed that the “isolation to which the law has long subjected same-sex couples” must end. It held that “precisely because marriage plays such a profound role in terms of the way our society regards itself … the exclusion from the common law and Marriage Act of same-sex couples is so injurious.”
The court also warned against any “remedy that on the face of it would provide equal protection, but would do so in a manner that in its context and application would be calculated to reproduce new forms of marginalisation.” It said that, “Historically the concept of ‘separate but equal’ served as a threadbare cloak for covering distaste for or repudiation by those in power of the group subjected to segregation.”
In offering civil unions but not full marriage to same-sex couples, Parliament is apparently poised to disregard the court’s instructions says the organisation. “It also would disregard South Africa’s respected Law Reform Commission, which stated in a report released this month that, ‘Since the tenet of equal treatment was an important part of the motive for [the Constitutional Court] permitting same-sex marriage, the creation of a separate but equal status would be discriminatory.'”
“Parliament must stop hesitating and stand up for equality,” said Long. “Creating a special separate status for lesbian and gay couples sends a clear message that they are second-class citizens. It violates South Africa’s constitution, and it flouts international human rights.”