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Transforming Society

Securing Rights

Restoring Dignity

Battle for rights in traditional rites

24 – 30 November 2017

Nonconforming people are protected by the Constitution in a complex tug-of-war

Recently, I had an oppor-tunity to see a screening of the award-winning film Inxeba: The Wound, which explores, in an incisive fashion, the complex ties involving oppressed sexual orienta-tion, gender identity and expression. This is done provocatively against the backdrop of the Xhosa rite of ulwaluko — a practice that has always been masked in secrecy and is intended to prepare young men for manhood.
The film interrogates this intersec-tion from the perspective of gender-nonconforming persons who find it difficult to navigate this space because of how they may deviate from these expectations as a result of their (seemingly irreconcilable) oppressed intersectional identities.

I was immediately struck by the urgency of this discussion in the South African context, especially given the “it’s-a-taboo” perception that South Africans have about sex-ual orientation, gender identity and expression.
With a constitutional mandate to promote a culture of human rights, the South African Human Rights Commission certainly has an interest in furthering this discussion — with a view to promoting openness, dig-nity and equality, the founding val-ues of the Constitution.

The film, in my opinion, ignites a dialogue that South Africa urgently needs to have — not only about this immediate intersection between queer people and tradition, but also broadly about the existence of spaces for queer people in culture, tradition, religion and other subcultures.

We are faced here with two oppos-ing forces that may well be irrecon-cilable — both of which have consti-tutional protection and could cause a tug-of-war between the right to equality on the one side and the right to culture, tradition and religion on the other. Values that are determined by culture, tradition and religion are often regarded as sacred, supreme and not subject to censure on any grounds whatsoever. On the other hand, Section 15(3)(b) read with 31(2) of the Constitution provides that the right of a cultural group to enjoy their cul-ture must be consistent with the pro-visions of the Bill of Rights.

In the 1999 case of Christian Education SA v Minister of Education, the Constitutional Court held that corporal punishment —which was the religious belief of the appellant — violated the right to human dignity.
In the 2005 Bhe v Magistrate Khayelitsha, the same court con-cluded that the African custom-ary law rule of male primogeniture (inheritance laws that favoured men) was unconstitutional and discrimi-nated unfairly against women on the grounds of race, gender and birth. In effect, the court contrasted the values in the Constitution (openness, equality and dignity) against the “other” systems and implied a prefer-ence for the former and the need for the latter to conform to the ideals of the Constitution.

Put plainly, a Xhosa man (and I’d imagine the same for a Xhosa transgender man) would have the constitutional right to both identify as a Xhosa man and join, enjoy and maintain (individually and collec-tively) a traditional or cultural asso-ciation as part of his identity.
For instance, to deny a place for such a person in the Xhosa ulwaluko practice on the basis of their sexual orientation or gender identity would be inconsistent with Section 31 of the Constitution. It may be challenging to provide an effective and final solu-tion to this complex tug-of-war with-out trivialising the issues on either side.
In the recent past, there has been dialogue, sparked by the Grace Bible Church incident in January, about whether nonconforming subjects of faith have a place in the religious paradigm. These questions remain largely unanswered.

The fact is, every culture, religion and tradition’s openness to noncon-forming people is subject to examina-tion. To what extent are we creating spaces for gender-nonconforming people in traditional, cultural prac-tices such as ulwaluko or ukuhlolwa?

Is there space for trans persons? Or does this queerness make the contro-versy more perverse? It is unthink-able at present, isn’t it, for an openly “not-so-masculine” gay man to be one of the leaders of ulwaluko?

Gift Kgomosotho is research adviser to the deputy chairperson of the South African Human Rights  Commission

Source: Mail & Guardian

The South African Human Rights Commission.

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The Human Rights Commission is the national institution established to support constitutional democracy. It is committed to promote respect for, observance of and protection of human rights for everyone without fear or favour.

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