South Africa: Home Affairs officials can refuse to marry same sex couples

South Africa has been a leader on the continent and globally in terms of legislation to promote the human rights of lesbian, gay, bisexual, transgender, intersex and queer persons (LGBTIQ) – in fact, our Constitution was the first in the world to prohibit discrimination on the grounds of sexual orientation.
In 2006, South Africa’s Civil Union Act (2006) legalised same-sex marriage, and provided same-sex couples with an opportunity to access the legal protections that heterosexual couples had long had access to. Civil unions are available to both heterosexual and homosexual couples under the law. Yet, at the moment, Section 6 of the Civil Unions Act allows marriage officers to refuse to solemnise a same-sex civil union on the grounds of ‘conscience, religion, and belief’.
Matthew Clayton, advocacy coordinator Triangle Project, a human rights organisation promoting LGBTIQ rights at explains the serious impact of this clause. “The current law makes it legal for DHA staff to discriminate against people on the basis of their sexual orientation. DHA staff are not allowed to refuse to marry any different sex couple on conscience grounds.
The current law creates a situation where homophobia, far from being discouraged, is one of the accepted ways to conduct yourself within the DHA. It also creates a situation where same-sex couples have to negotiate access to state services that they are legally entitled to.”
In 2016, of 409 Home Affairs offices across the country, only 117 had officials willing to marry same-sex couples. Reports have indicated that just over 37% (421 of the department of Home Affairs’ 1130 marriage officers) were exempt from conducting these marriages as of 2017. The argument from the Department of Home Affairs in 2017 was that they could not force officers to conduct these marriages, and that they had to protect the rights of their workers.
Yet for Rebecca Davis, journalist and author, this explanation is insufficient. “If government officials are unable to undertake their jobs in fulfillment of the Constitution, they should be removed from their posts. We wouldn’t accept government officials requesting the right to discriminate against people of different races or religions, so why should sexual orientation suddenly be up for grabs?” she asks.
This year, Deidre Carter of the Congress of the People (COPE) introduced a proposed amendment to the Civil Union Act, which would see this clause of the Act removed to promote the right to equality. Triangle Project made a written submission to Parliament on the proposed amendment, and argues that it will be a first step towards promoting constitutional equality for same-sex couples.
Although the period for written submissions is now closed, there is still an opportunity for engagement on this law at Parliament. Clayton clarifies, “the legislative process will now move on to the Home Affairs Portfolio Committee at Parliament. It will be important for those who support equality to make their presence felt at these meetings.”