The South African constitution is one of the most advanced in the world when it comes to LGBT rights. Viv Smith, a gay rights activist who worked for the ANC during the writing of the constitution, describes how these advances were won but argues there is still so much to fight for today.
The mass movement that got rid of apartheid carried with it a vision for a different society. The constitution, signed in 1996, symbolised the hopes of millions. Containing the most advanced Bill of Rights in the world it is no surprise that LGBT activists and human rights campaigners celebrated it. We felt that everything was possible: the world was at our feet ready for the taking.
Yet 13 years after the fall of apartheid this vision is becoming blurred. For the millions still living in townships without work, without proper access to education and the most basic of services, the fantastic advances represented in the constitution remain largely unfulfilled.
In the weeks and months following the first democratic elections parliament was an exciting place to be. Lobbies and protests took place every day. The debates in the constitutional assembly went on into the early hours of the morning. Thousands of submissions were made and hundreds of delegations from all walks of life came to parliament - something that for many would have been unimaginable a few years before.
The majority of submissions carried with them the hope and expectation for real change, for the shedding of the muck of nearly a century of discrimination and oppression. In terms of LGBT rights, South Africa went from being one of the most conservative countries in the world to one of the most advanced.
Not only did the constitution outlaw discrimination on the grounds of sexual orientation (a position adopted by the ANC, which had led the movement against apartheid, in 1993), but the Constitutional Court and parliament ushered in a host of laws to make the clause in the Bill of Rights real. This included the protection of LGBT people against unfair labour discrimination and discrimination in public accommodation, goods and services. Parliament also voted 230 to 41 in 2006 for a bill allowing same-sex civil marriage, as well as civil unions for unmarried opposite-sex and same-sex couples. For gay and lesbian people this went beyond legislative change, sweeping away generations of shame, discrimination and exclusion. However, making legislation and constitutional protections real for LGBT people living in townships or rural areas has proved incredibly difficult.
While the ANC willingly accepted the outlawing of discrimination against LGBT people, it is not true that this was always the case. The ANC itself was transformed on this and other questions through the process of struggle. When it was formed in 1912 the ANC was an all male organisation and women had to fight for the right to join. The height of the struggle in the 1980s, particularly as the trade unions went from strength to strength and the struggle broadened, saw many ideas challenged and changed.
Under apartheid homosexuality was a crime punishable by up to seven years in prison. Prior to the 1980s the South African Defence Force used to forced gay and lesbian soldiers to undergo medicinal "cures" for their sexual orientation, including sex change operations. The gay organisations that were formed were divided along racial lines and the political question of apartheid. Although the Gay Association of South Africa (GASA) was accepted into the International Lesbian and Gay Association (ILGA) it was disgraced by its lack of support for Simon Nkoli, a gay rights and political activist who was imprisoned in 1986.
As predominantly middle class organisations run by white men, they found it difficult to relate to the lives of black gay people and activists and often alienated themselves as they attempted to separate gay activism from the broader political struggle against apartheid. We faced this struggle when the National Coalition for Gay and Lesbian Equality (NCGLE) was formed. Bearing in mind this was just after the fall of apartheid, we still had to have the debate about why the battle for gay rights was intrinsically linked to the struggle for the transformation of society as a whole and why it was crucial to work with allies in the ANC and trade union movement.
The legal reforms ushered in since the fall of apartheid are some of the most advanced in the world and put many Western democracies to shame. Walking through big urban areas in South Africa today you see confident, out groups of young LGBT black men and women. But despite the legal reforms, for the majority of LGBT people homophobia and violence are still a common part of their daily existence. In July 2007 two young black lesbians, Sizakelle Sigasa and Salome Masooa, were found in a field near Soweto, tortured, raped and murdered because of their sexuality.
Recently a network of 15 gay organisations set up a joint working group in Johannesburg to conduct research into hate crimes against the LGBT community. The statistics they gathered show worrying trends: 36 percent of black lesbians and 40 percent of black gay men said they have experienced verbal abuse, 15 percent of black lesbians and black gay men have been abused physically and a shocking 10 percent of black lesbians and 9 percent of black gay men have experienced sexual abuse or rape.
Pressure is mounting on the ANC government and politicians to deliver and improve people's lives. There has been ongoing criticism at the way in which leading ANC politicians and government ministers have handled arguments around Aids and homosexuality, pandering to arguments that being gay is un-African and that Aids is a Western disease.
President Thabo Mbeki attempted to stop Aids campaigners from winning the right to access cheaper anti-retroviral drugs, siding with the drugs companies in the process. Health minister Manto Tshabalala-Msimang is also well known for suggesting that a healthy diet can cure you of Aids. This is a disgrace, given that 5.3 million South Africans live with Aids, and refusing to deal properly with the Aids crisis opens the door for gays to become scapegoats.
In this climate it is easy to forget that all the reforms were won through mass struggle. The anti-apartheid movement united workers in trade unions, students, churches and the unemployed. The mass strikes and student protests in the 1980's brought South Africa to the brink of revolution. The slogans "Land, Peace, Freedom and Jobs for All" that the ANC rode to victory on were within our grasp.
However, the revolution was stifled in favour of a "negotiated transition" and today the neo-liberal agenda that dominates across the globe is infiltrating every aspect of South African society. The idea of water, housing, electricity and education for all now depends on whether or not you can afford it.
The history of struggle from below, from the 1917 Russian Revolution to the movement for LGBT rights in Lebanon, shows how it is possible to win massive advances for gay rights despite the presence of homophobia and oppression in society. South Africa's own rich history of struggle shows how it is possible to win change through united mass struggle from below under the most difficult of circumstances.
The challenge for LGBT rights activists is to join with those campaigning for the ongoing transformation of society in an understanding that we will never win LGBT freedom while other groups in our society remain oppressed and marginalised.