WITH FRIENDS LIKE THESE…

A recent experience has served as a stark reminder that we have much work to do within our own ranks, as lesbian and gay folk, when it comes to gender justice.

In January of this year I sat in the public gallery of the National Assembly, along with fellow activists who had fought long and hard to ensure the passing of the Choice on Termination of Pregnancy (CTOP) Amendment Bill. It was an important occasion for the re-affirmation of women’s rights, as the Bill – which strengthens access to termination services for women – was to be passed by the House. I was feeling chipper and excited.

Then along came Mike Waters of the Democratic Alliance. He took the floor to express his party’s position on the Bill. Yet again, the DA managed to fudge its obligation to take a bold and principled position on a matter related to constitutional rights. Unsurprisingly, as they had done with the passing of the Civil Union Bill, the DA’s position was that support for the matter be decided through a vote of conscience amongst its members.

The danger of this approach, when it comes to fundamental principles of equality, dignity and human freedom, is that we get to rely on the whims of individuals to ensure constitutional compliance. But I had not expected more from the DA in this regard.

However, I had expected more from Mike Waters as a gay man. It seemed as if the DA had led their openly gay MP like a lamb to the slaughter to do their dirty work for them. It appeared that by using his publicly open sexual orientation as leverage, Waters asserted the right of civil servants to refuse to perform abortions. And he did this in the most offensive way, and I quote:

“Our second concern is that of conscientious objection by medical staff. We believe that doctors, mid-wives and nurses have the right to exercise their conscience similar to that of Civil Unions Bill, where marriage officers have the right to refuse people like myself from getting married. We believe they have a right to object and we believe that it should be written into the law.”

Wow. How’s that for using your position of power and privilege, as a public representative who is out as a gay man, to affirm the rights and dignity of lesbian and gay people?

In the shocking aftermath of that statement, it struck me that this must have been one of the only (if not the only) time that an MP, in the hallowed halls of the National Assembly, has referred directly to his sexual orientation. A brave step indeed but put to a pitiful purpose.

Waters didn’t declare his “people like myself” in order to deplore the relentless homophobic attacks against LGBT people and also not to confront the hate speech against us that was given air during the debate on the Civil Union Bill in the very House he was addressing.

Rather, he used his sexuality to defend the heterosexuals who, in the name of ‘conscience’ (a cloak for institutionalized bigotry), threaten the constitutional rights of women and gay and lesbian people every day. What on earth has the right to termination got in common with the right of same-sex couples to marry? I would have thought that a gay man would know better than to erroneously equate these two issues.

“…It’s ironic that so many years of legal reform in our favour have not resulted in gay and lesbian people in positions of power coming out…”

The offending clause in the Civil Union Act allows civil marriage officers to decide who they will marry and who they won’t. This is particularly problematic when the basis for exercising conscience is limited to sexual orientation. Would Waters have us believe that there is a greater reason to object to the legal recognition of same-sex couples than to that of heterosexual couples?

In doing so he reinforces that same-sex relationships merit different and unequal treatment to heterosexual relationships. Public officials, particularly magistrates, are obligated to operationalise the Constitution, and as such, this section of the Civil Union Act patently legitimates prejudice and is therefore unconstitutional.

So, how far will people like Mr. Waters go to ensure that refusals to uphold constitutional mandates on the part of civil servants be “written into law”?

Taken to its logical conclusion this could result in a range of opt-out clauses to which civil servants could resort whenever they feel the urge to act in line with their ‘conscience’ – even when this urge negatively impacts on citizens’ ability to access their rights through the State.

What about the responsibilities of the State in ensuring that the letter and spirit of non-discrimination and equality are actualized? But Waters was silent on that score in his unqualified assertions of the “right to object”.

Let’s remember that the State is not a private company (although there are many who would have it so). Those who act on its behalf, therefore, do so within a particular policy framework.

And with apartheid state policy dead and buried we need to ensure that our reorientation to a human rights culture, including the transformation of state functionaries in particular, is given effect to. Otherwise, in the absence of checks and balances to ensure that cries of conscience are not used to undermine the human rights gains we have made we run the risk of legislating for prejudice.

The court challenge to the CTOP Amendment Bill was part of a broader more orchestrated attempt to gradually chip away at hard won gains for women’s reproductive and sexual rights. Many of the key players in the anti-abortion lobby groups are exactly the same faces as those that took on the anti same-sex marriage plight with such vehemence and vitriol.

The cry of conscience was central to their argument. Mr. Waters should know this. And it is in this context that the position he took in parliament must be judged as disingenuous at best and seriously politically suspect at worst.

It’s ironic that so many years of legal reform in our favour have not resulted in gay and lesbian people in positions of power coming out. Despite the ruling party housing many of us and despite myriad laws that protect us the climate is still not conducive to coming out, let alone taking on the issues that affect us, unapologetically.

This serves as a stark reminder of how formal equality is continuously trumped by negative social attitudes. Even the politicians cannot face public opinions which are still steeped in prejudice!

There is much work to be done to consolidate our constitutional democracy and to ensure that the principles to which we aspire are given meaning and value. We need gay and lesbian leadership to be part of this process. We should boldly confront a disposition that makes the conservative sensibilities of others more important to pander to than confirming sexual and gender rights. And clearly we should not make the mistake of assuming solidarity and shared values on the basis of a common sexual orientation.

We need no apology for claiming our full citizenship as gay and lesbian people. Asserting this right when we have the platform and power to do so is a matter of conscience.