Blog


2019-09-14
Equality for all


South Africa's Constitution is the first in the world to prohibit unfair discrimination on the grounds of sexual orientation. It thereby guarantees equality for gay and lesbian people.

The enactment of the Constitution of the Republic of South Africa, 1996 (the Constitution) has provided a sound framework for the elimination of discrimination and prejudices against all members of our society. The Constitution provides for equal recognition of the right to freedom of religion and sexual orientation within the framework of the right to equality.

Same-sex marriage in the Republic of South Africa has been legal since the Civil Union Act 17 of 2006 came into force on the 30th of November 2006. South Africa became one of very few countries to confer legal protection and marriage benefits on partners in same-sex relationships.

The decision of the Constitutional Court in the case of Minister of Home Affairs v Fourie[1] on 1 December 2005 where The Constitutional Court ruled that it was unconstitutional for the State to provide the benefits of marriage to opposite-sex couples whilst denying them to same-sex couples. This infringed the right to equality before the law and the right not to be discriminated against by the State on grounds of sexual orientation. The Act extended recognition of marriage rights to same-sex partners and gives same-sex partners the right to enter into a civil partnership known as a civil union.

 

[1] 2006 SA (1) 542 (CC)

In 1994, Court Judge Anna-Marié De Vos, adopted two children, the siblings Nuschka and Reid, as a single parent adoption. In 2001 together with her life partner Suzanne Du Toit, the women challenged South African child adoption laws and demanded the right to adopt as equal partners[1]. They won the case, changed the law, made international headlines and assured the rights of gay and lesbian co-adoptive parents in South Africa.

The applicants, partners in a longstanding lesbian relationship, wanted to adopt two children. They could not do so jointly because current legislation confined the right to adopt children jointly to married couples. Consequently, the second applicant alone became the adoptive parent.
Some years later, the applicants brought an application in the Pretoria High Court challenging the constitutional validity of sections 17(a), 17(c) and 20(1) of the Child Care Act 74[2] and section 1(2) of the Guardianship Act 192[3] which provided for the joint adoption and guardianship of children by married persons only.

In the High Court, the relevant provisions of the Child Care Act 74 were challenged on the grounds that they violated the Applicants’ rights to equality and dignity and did not give paramountcy to the best interests of the child as required by section 28(2) of the Constitution. Kgomo J found that these provisions of the Child Care Act 74 and the Guardianship Act 192 violated the Constitution and ordered the reading in of certain words into the disputed provisions so as to allow for joint adoption and guardianship of children by same-sex life partners.

Today, the adoption of Children in South Africa is governed by the Children’s Act[4], which does not prohibit a gay or lesbian adoption. The Act allows children to be adopted jointly by:

  • a husband and wife;
  • partners in a permanent domestic life-partnership; and/or
  • other persons sharing a common household and forming a permanent family unit.

One of the myths is that a gay or lesbian parent may be emotionally unstable and in the case of men, more likely to abuse young children sexually. Both notions have been rejected. It is internationally understood and recognized that sexual orientation is in no way detrimental to one’s ability to parent a child nor does it threaten mental or personal stability.

There is also a myth that children, who are exposed to gay and lesbian parents, may eventually become homosexual. This is not true considering social facts, scientific evidence and changes in social attitudes. The large majority of homosexual people were raised by heterosexual couples anyway. And so, what if the child is gay or lesbian? In the world today, it is unconstitutional to discriminate based on sexual orientation.

Whether prospective adopters are homosexual or heterosexual, children need security, love, acceptance, nurturance and consistent care in order to grow and develop into fully productive members of society, and this can only be achieved by a child being part of a functional family.

In 1994, Court Judge Anna-Marié De Vos, adopted two children, the siblings Nuschka and Reid, as a single parent adoption. In 2001 together with her life partner Suzanne Du Toit, the women challenged South African child adoption laws and demanded the right to adopt as equal partners[5]. They won the case, changed the law, made international headlines and assured the rights of gay and lesbian co-adoptive parents in South Africa.

The applicants, partners in a longstanding lesbian relationship, wanted to adopt two children. They could not do so jointly because current legislation confined the right to adopt children jointly to married couples. Consequently, the second applicant alone became the adoptive parent.
Some years later, the applicants brought an application in the Pretoria High Court challenging the constitutional validity of sections 17(a), 17(c) and 20(1) of the Child Care Act 74[6] and section 1(2) of the Guardianship Act 192[7] which provided for the joint adoption and guardianship of children by married persons only.

In the High Court, the relevant provisions of the Child Care Act 74 were challenged on the grounds that they violated the Applicants’ rights to equality and dignity and did not give paramountcy to the best interests of the child as required by section 28(2) of the Constitution. Kgomo J found that these provisions of the Child Care Act 74 and the Guardianship Act 192 violated the Constitution and ordered the reading in of certain words into the disputed provisions so as to allow for joint adoption and guardianship of children by same-sex life partners.

Today, the adoption of Children in South Africa is governed by the Children’s Act[8], which does not prohibit a gay or lesbian adoption. The Act allows children to be adopted jointly by:

  • a husband and wife;
  • partners in a permanent domestic life-partnership; and/or
  • other persons sharing a common household and forming a permanent family unit.

One of the myths is that a gay or lesbian parent may be emotionally unstable and in the case of men, more likely to abuse young children sexually. Both notions have been rejected. It is internationally understood and recognized that sexual orientation is in no way detrimental to one’s ability to parent a child nor does it threaten mental or personal stability.

There is also a myth that children, who are exposed to gay and lesbian parents, may eventually become homosexual. This is not true considering social facts, scientific evidence and changes in social attitudes. The large majority of homosexual people were raised by heterosexual couples anyway. And so, what if the child is gay or lesbian? In the world today, it is unconstitutional to discriminate based on sexual orientation.

Whether prospective adopters are homosexual or heterosexual, children need security, love, acceptance, nurturance and consistent care in order to grow and develop into fully productive members of society, and this can only be achieved by a child being part of a functional family.

 

[1] Du Toit and Another v Minister of Welfare and Population Development and Others 2002 (10) BCLR 1006; 2003 (2) SA 198 (CC) (10 September 2002)

[2] Act 74 of 1983.

[3] Act 192 of 1993.

[4] Act 38 of 2005.

[5] Du Toit and Another v Minister of Welfare and Population Development and Others 2002 (10) BCLR 1006; 2003 (2) SA 198 (CC) (10 September 2002)

[6] Act 74 of 1983.

[7] Act 192 of 1993.

[8] Act 38 of 2005.