Guest Post: Same Sex Marriage in SA
What’s law got to do with it?: Same sex marriage in South Africa
by Caili Forrest
Images by Duane Smith
Caili is a very dear friend of mine. SO dear, that she guided my husband and I through our wedding service. We were at school together from Grade 1 and despite her confidence and incredibly supportive family, she only came out to us as gay in Varsity. It was a shock to us, but it also wasn’t. It took a while to adjust to this new ‘open’ Caili but it was AWESOME to see her finally free of such a big secret. She studied at Cambridge University and wrote for the LGBT magazine called No Definition, and home in Durban is very active in the LGBT community. I asked Caili to write an article on same sex marriages in SA and the legal process, in the hope that it might guide any couples (or family members) who were unsure of this country’s laws. If you have any questions on this topic or something to add, please feel free to write them in the comments section below.
My parents are one of those rare couples who after about a million years (ok, actually 40) are still learning new things together, are fiercely devoted to each other, and share a deep love for one another. It is an amazing thing to witness, literally. Having grown up in this setting, it is hard not to want it for myself – well at least aspire to it – and that brings me to the idea of same sex marriage.
When I first came out as a lesbian I mainly worried about whether my family and friends would accept me as I am, which they did with open arms (yay you guys!). Soon after that I started to re-look at the way I saw things like marriage, children, religion, social gatherings and so many other things. As a queer South African I can only be relieved and proud that on paper South Africa is a forerunner of Lesbian, Gay, Bisexual, Transgender, and Intersex (LGBTI) rights on the African continent and in the world.
South Africa’s Bill of Rights was the first in the world to ban discrimination on the basis of sexual orientation. South Africa was also the first country in Africa and fifth in the world to legalise same sex marriage through the Civil Unions Act in 2006. There are currently just over 20 countries in the world that have recognised same sex marriage.
Equal marriage rights are a really positive step for the LGBTI movement, but not everyone in the queer community agrees with this. Many queer people feel that getting married buys into a way of life that doesn’t embrace varied genders and sexualities. Intellectually I can agree with this argument, but like I said earlier, my family history has got the better of me here. The second major thing to remember is that just because these laws are out there does not mean all queer people can access them – in fact for the vast majority of queer South Africans this is not the case.
The Civil Union Act (2006) was created as a classic ‘legal loophole’. It is one of three Acts governing marriage alongside the Marriage Act, and the Customary Marriages Act. Instead of changing the definition of marriage, they created a new law to get married under. In fact any couple (straight, gay or otherwise) can enter into a marriage or civil partnership under the Civil Union Act, and get the same rights as those married under the traditional law. However, it still has a not-so-fortunate loophole where a marriage officer can choose whether or not she/he wants to register same sex partners “on the ground of conscience, religion and belief”. What this means is that same sex couples can arrive at the Department of Home Affairs, on what should be a one of the happiest days of their lives, and be turned away – not cool. It also does not apply any pressure to religious organisations to marry queer couples so, for better or worse, each faith makes their own choices in this area.
This Act has been in place for almost 10 years now and in 2007, there were only 80 civil unions registered. Since then there have been 800 – 900 couples saying ‘I do’ under this Act each year. It makes me think of a wonderful colourful line of people, queer and straight, stretching back into the recent past making this incredible commitment to one another. Maybe I’ll join this line one day, maybe I won’t; either way I am grateful for the freedom to choose.
Research and further reading: