Case Study: A Progressive Constitution Meets Lived Reality: Sexuality and the Law in South Africa

Lewin, T., Williams,K. and Thomas, K.
Institute of Development Studies (IDS)
Publication date: 
Tuesday, 11 June, 2013


South Africa

This paper examines two cases of homophobic hate crime in post-apartheid South Africa. It illuminates how activists have used the legal system to address the violence faced by many lesbian, gay, bisexual, transgender, queer or intersex (LGBTQI) South Africans.

Drawing on court transcripts, the experience of the lawyer in one of the cases and on interviews conducted with activists in South Africa, the article also draws attention to some of the challenges faced by those seeking to secure justice for LGBTQI people.

The authors argue that recognising forms of violence motivated by prejudice as ‘hate crimes’ can serve as a powerful legal tool. The article provides a brief overview of the use of the term ‘hate crime’ in the South African context and offers concise accounts of the case studies and observations drawn from them.

It also provides a series of recommendations regarding sexuality, violence and the law for state actors (ranging from police officers to judges and policymakers), for LGBTQI activists and educators and for donors.

  • In the South African legal context, hate crimes are not yet recognised as a specific category, despite high levels of physical and sexual assault based on sexual orientation or gender identity.
  • Homophobia, conservatism and a weak rule of law have made it difficult for gay, lesbian and transgender people to realise their rights as enshrined in the South African Consitution.   
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