What the SA Human Rights Commission is doing to advance queer rights

Learners celebrating the LGBTQI+ community in 2022 in Gqeberha. Archive photo: Joseph Chirume

South Africa hosted its first ever Pride March in 1990, thanks to the likes of Bev Ditsie, Simon Nkoli and Phumi Mthetwa. In 2006, South Africa became the fifth country in the world to legalise same-sex unions, enabling any person to enter into a civil union. A civil union recognises the same rights and responsibilities as Civil Marriages, with the main difference being its acceptance of all types of relationships on an equal basis.

Slow strides have been made in achieving equality in law for the LGBTQIA+ community, and even slower progress in aligning society, societal attitudes and personal or religious beliefs with the tenets of equality for all and respect for human dignity.

In 2022, the justice department stated that: “Despite our progressive laws and legislation, discrimination, prejudice, and violence on the basis of a person’s sex, sexual orientation, gender identity, gender expression and sex characteristics still exists.”

We see this disjuncture between progressive laws and lived reality in the number of complaints received annually by the South African Human Rights Commission (SAHRC/Commission). Unfair discrimination on the grounds of sexual orientation ranks as the third most complained about discriminatory ground to the SAHRC for the 2024/25 financial year. This excludes many other forms of discrimination experienced by the LGBTQIA+ community.

As part of the Commission’s constitutional mandate to protect, promote, and monitor the human rights of LGBTQIA+ persons, a number of proactive and reactive measures have been put in place, led by the Commission’s Anti-Racism, Equality and Education focal area which has identified the LGBTQIA+ community as one of its two priority communities.

School code of conduct

The Commission regularly receives and addresses complaints of discrimination, bullying and marginalisation of queer learners.

The SAHRC, together with Equal Education Law Centre and a panel of experts, have developed a comprehensive and constitutionally compliant model school code of conduct, which will apply to the entire school community, and not only learners.

The code will regulate, among other things, rules on school uniforms, appearance, and the use of bathrooms, taking into account diverse cultures, religions, gender identities, and socio-economic positions.

The code also highlights the rights of specific learners, namely pregnant learners, LGBTQIA+ learners, learners with disabilities, and undocumented and immigrant learners.

In collaboration with the Department of Basic Education, schools throughout the country will be required to either adopt the model school code of conduct wholesale, or adapt their existing codes of conduct to align with the model school code of conduct.

Parenting guide

The Commission has also developed a guide for parents of intersex children, which will be produced in the form of pamphlets and posters, translated into South Africa’s 12 official languages, and disseminated in all healthcare facilities in partnership with the Department of Health.

The pamphlet aims to educate parents of intersex children. This includes what it means to be an intersex child and what intersex genital mutilation (IGM) is. It gives various options available to parents with intersex children as an alternative to consenting to invasive or irreversible medical procedures (such as IGM) that will permanently alter a child’s sex characteristics. It also addresses cultural or religious stigma attached to having an intersex child.

Sensitivity training

The Commission, together with the University of Cape Town’s Office of Inclusivity and Change, is also currently working on developing a diversity and sensitivity training manual aimed at facilitators and various stakeholders, including perpetrators of unfair discrimination in matters pursued by the Commission in litigation in the Equality Court.

In all of the Commission’s Equality Court cases restorative justice is the cornerstone of the approach which sets down diversity and sensitivity training for perpetrators as mandatory relief.

Litigation

Litigation has included the Commission’s involvement in Caster Semenya’s case against the International Association of Athletics Federations (IAAF) in the European Court of Human Rights (European Court). Semenya is challenging the IAAF’s regulations on Differences of Sex Development, which require intersex people with high testosterone to lower their natural testosterone levels to be eligible to compete as a woman in international sporting events. The European Court admitted the Commission as a third-party intervenor. The court will deliver its judgment on 10 July 2025.

The commission brought to the court’s attention the rich body of jurisprudence in South Africa on the issue of unfair discrimination on the grounds of race, gender, sex, and sexual orientation. Broadly, the submissions made by the SAHRC focus on the discriminatory effect of the regulations on the intersecting grounds of race, sex, and gender.

Some other recent high-profile cases the Commission has pursued against perpetrators of discrimination against the LGBTQIA+ community include Steve Hofmeyr for his harmful posts on social media. This resulted in a court ordered settlement that required the publication of a formal public apology, a R100,000 payment to OUT LGBT Well-being. Hofmeyr must also attend diversity and inclusion training.

The Commission’s Eastern Cape Provincial Office is currently in court against a business owner, Dawood Lagardien, who continues to display a sign outside of his business stating: “LGBTIQ not welcome at La Gardi – Save our children.”

The Commission has applied for an interdict requiring the immediate removal of the signage and the halting of discriminatory conduct. It has requested the issuing of a public apology; the payment of R500,000 in damages; and the referral of the matter to the National Prosecuting Authority for criminal prosecution.

The Western Cape Provincial Office of the Commission is currently in litigation against Beloftebos, a wedding venue in Stanford, for refusing to host a same-sex wedding on religious grounds.

The Commission is also closely monitoring the South African Police Services’ investigation into the murder of the openly gay Imam, Muhsin Hendricks, in the Eastern Cape earlier this year.

In the past, the Commission has successfully intervened in the application of a transgender woman to change her gender markers and forenames with the Department of Home Affairs, with a longer term solution in mind in respect of gender markers.

Based on the prevalence of discrimination and the perpetration of violence against the LGBTQIA+ community, it is evident that we still have a long way to go to achieve substantive equality, but as we shift our focus towards prioritising the changing of hearts and minds through proactive interventions and restorative justice, we may be closer than ever to walking the path to equality, and experiencing pride in true change.

Tshepo Madlingozi is SA Human Rights Commissioner: Anti-Racism, Education, and Equality.

Lee-Anne Germanos Manuel is Research Advisor at the SAHRC.

Views expressed are not necessarily those of GroundUp.

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