On the world’s 1st constitution to protect LGBs from discrimination
By Peter Tatchell
This essay is dedicated to the many heroic South African LGBT and anti-apartheid activists that I worked with during the period of white minority rule – heroes who helped secure the commitment of the African National Congress of South Africa to LGBT human rights, including the enactment of the world’s first constitution to protect LGBT people against discrimination.
As a gay teenager growing up in Melbourne, Australia, my three great passions were men, surfing and politics. All three came together in the summer of 1971, when at the age of 19, I went on my first anti-apartheid protest. It was against the all-white South African Surf Life-Saving tour. At one of my favourite beaches, Lorne, on a blistering hot morning, 40 of us lay down on the sand in a bid to stop the South African team taking their boat out of the boathouse. We succeeded, for a while, making our symbolic point – before being battered and bloodied, and then carted off by the police. So began my two decades of activism against the apartheid regime: pickets, boycotts, marches and sit-ins.
Over those long years, I kept hearing disconcerting stories about homophobic attitudes within the African National Congress – the main liberation movement and the likely governing party of a post-apartheid South Africa. At the left-wing World Youth Festival in East Berlin in 1973, which I attended as a Gay Liberation Front delegate, there were reports of the victimisation of lesbian and gay ANC members, and warnings that queers would have a tough time when the ANC came to power.
Homophobia existed at high levels in the ANC, even though there was a long history of gay people being involved in the struggle against apartheid. The gay theatre director, Cecil Williams, was one such person. He played a key role in aiding Nelson Mandela when he was on the run from the police in the early 1960s. To enable Mandela to carry on his underground activism and avoid detection, Williams had Mandela disguise himself as his chauffeur.
Despite the contributions of courageous lesbian and gay people such as Cecil Williams, the ANC still had a de facto anti-gay policy or, at best, a stance of not supporting LGBT equality.
In those days, only a handful of anti-apartheid activists dared challenge the homophobia – and sexism – of the ANC leadership. There was a near-universal expectation that opposition to apartheid involved uncritical support for the liberation struggle. It was deemed betrayal to question the ANC. Criticism was unwelcome – even when it was constructive and came from friends and allies. We were told by the official Anti-Apartheid Movement that any doubts or concerns had to wait until the white supremacist system was overthrown. Most anti-apartheid activists duly obliged. I was one of them. My fear was that speaking out would give comfort and succour to the white minority regime, and undermine support for the just cause of the ANC. Although I made my concerns known behind the scenes, publicly I remained silent.
In 1987, after nearly 20 years involvement in the anti-apartheid struggle, I felt unable to stay silent any longer. No movement for human liberation has a right to demand unconditional loyalty. Such a demand leads, inexorably, to collusion with injustice. It was, after all, the insistence on uncritical support that resulted in so many people on the left ignoring or excusing the terrible crimes of the Stalin and Mao eras.
True loyalty sometimes involves challenging friends concerning their own shortcomings and mistakes.
My worry was that unless leading members of the ANC were confronted over their homophobia, a post-apartheid ANC-ruled South Africa might pursue the same kind of anti-gay policies that were common in other revolutionary states, such as Cuba, the Soviet Union and China.
This was not an unreasonable fear. When battling to overthrow dictatorship and fascism, most ANC-style liberation movements talked about creating a society with social justice and human rights for all. But after liberation they usually enforced a heterosexist regime that left queers just as victimised – if not more so – than before. Would it be a liberation worthy of the name if a free South Africa perpetuated the homophobia of the apartheid state?
After trying to influence ANC attitudes privately without success, as had many other people before me, I concluded that the only way to change things was by publicly exposing the ANC’s rejection of LGBT human rights. My calculation was that the subsequent uproar would embarrass the ANC leadership and this might precipitate its switch to a more gay-sympathetic policy.
Accordingly, in August 1987, on hearing that ANC executive member Ruth Mompati was visiting London to promote South Africa Women’s Day, I devised a plan and requested an interview.
A courageous fighter against the apartheid regime, Mompati was one of the leaders of the biggest women’s demonstration in South African history. In 1956, 20,000 women marched on the Union Buildings – the seat of government in Pretoria – to protest at the extension of the notorious pass laws to women.
Most of my interview with Mompati was about the struggle for women’s emancipation, and was duly published in Labour Weekly. But towards the end, I raised the issue of women’s sexual emancipation – in particular the human rights of lesbians and their role in the struggle against apartheid. This provoked an astonishing outburst that reconfirmed all the previous horror stories that I had heard about ANC homophobia.
“I hope that in a liberated South Africa people will live a normal life”, Mompati told me. “I emphasise the word normal … Tell me, are lesbians and gays normal? No, it is not normal”.
“I cannot even begin to understand why people want lesbian and gay rights. The gays have no problems. They have nice houses and plenty to eat. I don’t see them suffering. No one is persecuting them … We haven’t heard about this problem in South Africa until recently. It seems to be fashionable in the West”.
When asked her reaction to the formation of LGBT anti-apartheid organisations inside South Africa, Mompati insisted: “They are not doing the liberation struggle a favour by organising separately and campaigning for their rights. The (gay) issue is being brought up to take attention away from the main struggle against apartheid. These other problems can wait until later. They are red herrings”.
Mompati justified the ANC’s lack of policy on LGBT human rights with the riposte: “We don’t have a policy on flower sellers either”. While acknowledging that women have special problems and specific interests that need to be addressed by the ANC, she was adamant that “lesbians and gays do not”.
Concerned to be fair, in case Mompati’s views were unrepresentative of the ANC’s position, I contacted its London office and spoke to the liberation movement’s then chief representative in Britain, Solly Smith. He expressed similarly offensive opinions: “We don’t have a policy. Lesbian and gay rights do not arise in the ANC. We cannot be diverted from our struggle by these issues. We believe in the majority being equal. These people (lesbians and gays) are in the minority. The majority must rule”.
When asked if the ANC was opposed to discrimination against homosexuals and if an ANC-led government would repeal the anti-gay laws of the apartheid state, Smith replied: “I have no comment on that”.
This was, to my knowledge, the first time anyone had recorded verbatim accounts of the homophobic attitudes of ANC leaders. I knew these quotes would cause the ANC grief and discomfort. But a bit of pain and short term damage was necessary, I reasoned, in order to overturn homophobia within the liberation movement.
Accordingly, my interviews with Ruth Mompati and Solly Smith were published in the London gay weekly newspaper, Capital Gay, on 18 September 1987, under the headline “ANC dashes hopes for gay rights in SA”. As I expected, and hoped, Smith’s and Mompati’s homophobia provoked an outcry in LGBT and liberal circles – even among many anti-apartheid activists.
To globalise the pressure on the ANC, I then circulated my article for republication in the gay and anti-apartheid press world-wide, including South Africa. My aim was to get the ANC inundated with protests that would (hopefully) pressure it to confront the issue of homophobia and eventually to abandon its refusal to support LGBT equality.
My Capital Gay article did, thankfully, result in the ANC and the anti-apartheid movement internationally being deluged with letters of condemnation. People were appalled that a “liberation movement” like the ANC could be so ignorant, bigoted and intolerant. The ANC leadership was hugely embarrassed.
But embarrassing the ANC was not my goal; it was merely a means to an end. My objective was to win the ANC to the cause of LGBT human rights. I therefore devised a plan to offer the leadership a face-saving solution and a constructive way forward. This involved writing a private appeal to the ANC leadership in exile in Lusaka.
My letter, dated 12 October 1987, was addressed to Thabo Mbeki, then the ANC Director of Information. I chose him on the advice of exiled ANC contacts, David and Norma Kitson. They suggested he was the most liberal-minded of the ANC leaders and senior enough to be able to push for a radical rethink of official policy. My letter was challenging, but friendly and constructive. I argued that support for LGBT liberation was consistent with the principles of the ANC’s Freedom Charter:
“Dear Thabo Mbeki,
… Given that the Freedom Charter embodies the principle of civil and human rights for all South Africans, surely those rights should also apply to lesbians and gays? And surely the ANC should be committed to removing all forms of discrimination and oppression in a liberated South Africa? … To me, the fight against apartheid and the fight for lesbian and gay rights are part of the same fight for human rights.
Yours in comradeship and solidarity, Peter Tatchell”.
When writing to Mbeki I also included a sheaf of my published articles about leading lesbian and gay anti-apartheid activists inside South Africa, including Simon Nkoli and Ivan Toms. Simon, a student activist, was a defendant in one of the great cause celebres of the 1980s, the Delmas Treason Trial. Ivan was a doctor who had won acclaim for his work in the Crossroads squatter camp in Cape Town and was active in the campaign against conscription (he was later jailed for refusing to serve in the army of apartheid).
This information about LGBT involvement in the struggle against apartheid was news to many members of the exiled ANC Executive, and apparently had considerable influence in swinging the vote in favour of a pro-LGBT stance.
My letter to Mbeki – following in wake of adverse publicity from my Capital Gay article and subsequent protests – had the desired effect. Within a few weeks, the ANC leadership in exile began a major reevaluation of its stance on LGBT issues. As a result of these internal debates, the ANC officially, for the first time, committed itself to support LGBT equality and human rights.
This new pro-gay rights ANC policy was publicly announced in a telegram to me from Thabo Mbeki, dated 24 November 1987. He wrote:
“Dear Peter,
… The ANC is indeed very firmly committed to removing all forms of discrimination and oppression in a liberated South Africa. You are correct to point this out. That commitment must surely extend to the protection of gay rights … I would like to believe that that my colleagues, Solly Smith and Ruth Mompati, did not want to suggest in any way that a free South Africa would want to see gays discriminated against or subjected to any form of repression. As a movement, we are of the view that the sexual preferences of an individual are a private matter. We would not wish to compromise anybody’s right to privacy … and would therefore not wish to legislate or decree how people should conduct their private lives … We would like to apologise for any misunderstanding that might have arisen over these issues …
Yours in the common struggle, Thabo Mbeki”.
Mbeki’s statement was not as strong and comprehensive as many of us would have liked, nor had it been agreed by a formal policy-making conference of the ANC. But it was, nevertheless, a watershed moment. The ANC leadership was publicly aligning itself with the struggle for LGBT emancipation. A first!
At Mbeki’s own request, I communicated his letter to gay and anti-apartheid movements world-wide. I also sent a copy to members of South African lesbian and gay groups, such as the long-time lesbian anti-apartheid activists, Sheila Lapinsky and Julia Nicol of the Organisation of Lesbian & Gay Activists (OLGA), based in Cape Town. In addition, I forwarded copies to members of the United Democratic Front – the main anti-apartheid coalition inside South Africa.
Long before me, other people had pressured the ANC to change its homophobic stance, but none of them succeeded. It was, it seems, only the huge torrent of negative publicity generated by my Capital Gay article, and my challenging letter to Thabo Mbeki, that prompted the ANC’s rethink. My intervention was, perhaps, merely the culmination of earlier efforts by others – the final straw that broke the camel’s back. Maybe I was merely the catalyst for changes that had been in the making for a very long time. What is certain is that without the ANC and international anti-apartheid movements being flooded with howls of protest, my letter to Mbeki may have had no impact at all. Due credit must be given to the many people from all over the world who helped pressure the ANC.
Securing the ANC’s official opposition to homophobic discrimination gave the struggle for LGBT emancipation inside South Africa new legitimacy and kudos. It was instrumental in helping persuade some individuals and organisations fighting the white minority regime – both within South Africa and in other countries – to embrace LGBT equality – or at least to not oppose it. By giving the cause of LGBT rights political credibility, the ANC’s stance helped pave the way for the subsequent inclusion of a ban on sexual orientation discrimination in the post-apartheid constitution.
Outlawing sexuality discrimination in the post-apartheid constitution
Not long after the ANC came out for LGBT rights, exiled ANC leaders based in London began work on drafting a constitution for a free and democratic South Africa. In 1989, I contacted a member of this constitutional working party, Albie Sachs, at the University of London, urging him to include in the ANC’s draft constitution a ban on discrimination based on sexual orientation.
He was initially rather sceptical. So I provided a draft wording, backed up with examples of anti-discrimination statutes from various European countries, such as Denmark, France and the Netherlands. These countries had laws incorporating either comprehensive protection against discrimination or an explicit ban on discrimination on the grounds of sexuality. These concrete legal precedents apparently helped reassure Sachs, and later also helped convince others in the ANC leadership, that a ban on anti-gay discrimination was feasible and practical.
A little later, I sent my own suggested draft wording – together with samples of anti-discrimination laws from other countries – to LGBT groups inside South Africa (especially OLGA and GLOW – the Gay & Lesbian Organisation of the Witwatersrand). I also arranged for them to write direct to Albie Sachs in London and to lobby the anti-apartheid United Democratic Front inside South Africa.
In December 1989, on my initiative, a meeting was held in London between Sachs and OLGA representatives, Derrick Fine and Niezhaam Sampson. They discussed OLGA’s constitutional proposals face-to-face. This personal meeting helped to cement Sachs’s backing for a constitutional clause prohibiting discrimination based on sexual orientation. His support later helped win over other key people in the ANC leadership.
After the collapse of the apartheid regime and the unbanning of the ANC in February 1990, OLGA held meetings inside South Africa with senior ANC members, Frene Ginwala, Albie Sachs and Kader Asmal, all of whom expressed a positive attitude towards OLGA’s constitutional proposals.
Sach’s, in particular, continued to have contact with OLGA and other LGBT organisations to further develop the idea of LGBT rights as part of a broad human rights package within South Africa’s new constitution. He did, however, warn OLGA that there was “no guarantee” that a majority in the ANC would endorse constitutional protection for LGBTs; an indication that sections of the liberation movement remained unsupportive or ambivalent on the issue of sexual orientation equality.
Undeterred, in September 1990, OLGA made an extensive submission to the ANC’s Constitutional Committee, which was in charge of formulating the movement’s draft Bill of Rights. This submission was supported by 11 other South African LGBT organisations, including GLOW. It proposed a Bill of Rights that would “protect the fundamental rights of all citizens” and guarantee “equal rights for all individuals, irrespective of race, colour, gender, creed or sexual orientation”.
Simultaneously, OLGA, GLOW and other gay organisations used the ANC’s previous endorsement of LGBT equality to lobby the United Democratic Front and other anti-apartheid groups within South Africa. This lobbying helped persuade prominent campaigners in some of these groups to back the inclusion of a constitutional ban on anti-gay discrimination.
These efforts had a successful outcome when, in November 1990, the publication of the ANC’s draft post-apartheid constitution included an explicit prohibition on homophobic discrimination.
OLGA also developed and canvassed support for a specific and comprehensive Charter of Lesbian and Gay Rights. In 1993, this proposal won the endorsement of a national conference of LGBT organisations, which had been convened to forge a united campaign for constitutional protection.
The push for LGBT human rights was subsequently carried forward in the post-1994 period by a new umbrella organisation – the National Coalition for Gay and Lesbian Equality (NCGLE).
It is thanks to the efforts of these many far-sighted, determined and courageous LGBT people inside South Africa that constitutional rights for LGBTs were finally won; making the South African constitution the first in the world to outlaw discrimination based on sexual orientation. Bravo!
THE POST-APARTHEID CONSTITUTION OF SOUTH AFRICA
Chapter 2 – Bill of Rights
Equality
9.
(1) Everyone is equal before the law and has the right to equal protection and benefit of the law.
(2) Equality includes the full and equal enjoyment of all rights freedoms. To promote the achievement of equality, legislative and other measures designed to protect or advance persons, or categories of persons, disadvantaged by unfair discrimination may be taken.
(3) The state may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth.
(4) No person my unfairly discriminate directly or indirectly against anyone on one or more grounds in terms of subsection (3). National legislation must be enacted to prevent or prohibit unfair discrimination.
(5) Discrimination on one or more of the grounds listed in subsection (3) is unfair unless it is established that the discrimination is fair.
Note:
A version of this essay was published in South Africa under the title: The moment the ANC embraced gay rights, in the book, Sex and Politics in South Africa, Neville Hoad, Karen Martin and Graeme Reid (Editors), Double Storey Books, Cape Town, 2005