Policy Innovations Digital Magazine (2006-2016): Briefings: South Africa Takes Leading Role on Same-sex Marriage Rights

Dec 18, 2006

South Africa recently legalized same-sex marriage in a move demonstrating further progress from a past fraught with inequality and discrimination. South Africa is the first African country to make this leap and the fifth worldwide, joining ranks with the Netherlands, Spain, Canada, and Belgium in a trend that may help fight the spread of HIV/AIDS.

The Civil Union Act grants same-sex couples the right to register marriages and civil partnerships, and it passed in the National Assembly despite opposition from religious and traditional leaders. This historic bill builds on the guarantees enshrined in the South African Constitution, which is one of the most progressive in the world and was the first to specifically outlaw discrimination based on sexual orientation.

This legislation marks a significant shift in policy in a world where anti-sodomy laws criminalize homosexual acts and some countries use public execution as tool of persecution. In Cameroon, the government has repeatedly detained citizens on charges of homosexuality, and students have been expelled from academic institutions based on allegations of homosexual identity.

A similar situation exists in Jamaica, where the Offences against the Persons Act has endured since 1864. Sections of that law prohibit acts of "gross indecency" between men in public or private, and punish "the abominable crime of buggery" with up to ten years of imprisonment and hard labor.

Often these anti-sodomy laws are supported by public sentiment and religious assertions denouncing homosexuality. In these countries it is argued that homosexuality is an immoral Western lifestyle that is alien to local cultures. As a result, homosexuals are pressured to conceal their sexual identity, sometimes living double lives in fear of violent opposition.

International human rights organizations such as Amnesty International, Human Rights Watch, and the International Gay and Lesbian Human Rights Commission have expressed their disapproval of these domestic laws. Human Rights Watch has even called for them to be rescinded. Governments often denounce such confrontations as attacks on national sovereignty and as a manifestation of neo-imperialism.

In the United States to date, only one state has legalized same-sex marriage, and nineteen states have constitutional amendments that explicitly prohibit it. In what seems to be an ironic turn of events, South Africa has become one of the world’s most progressive countries in the struggle to eliminate all forms of discrimination.

South Africa’s bill legalizing same-sex marriages also has significant implications for curbing the spread of the HIV/AIDS epidemic in the region. A Human Rights Watch report notes that in countries in which anti-sodomy laws criminalize homosexual acts and cultural assertions condemn homosexuality, men who have sex with men are at a higher risk of contracting HIV.

Social stigmatization and institutionalized discrimination often deter people from seeking HIV-related counseling and heath care. The spread of HIV is exacerbated because many of these individuals have heterosexual partners in an effort to conceal their true sexual orientation.

The HIV/AIDS epidemic in South Africa has been among the most severe in the world, the steps taken by the South African government toward securing equality for homosexuals mean that these individuals now face fewer barriers to obtaining HIV treatment and counseling. Meanwhile, acknowledging the rights of same-sex couples could have the far-reaching effect of reducing the spread of the global epidemic HIV/AIDS.

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