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South Africa – SOGI Legislation Country Report (2013)

Discrimination (by both state and private actors) on grounds of sex, marital status, and sexual orientation is prohibited constitutionally (Section 9, Bill of Rights) and by the Promotion of Equality and Prevention of Unfair Discrimination Act, 2000.

“Sex” as a prohibited ground of discrimination is defined to include “intersex” for the purposes of the Promotion of Equality and Prevention of Unfair Discrimination Act (Judicial Matters Amendment Act, 2005).

In National Coalition for Gay Equality v Minister of Justice (1998), the Constitutional Court stated that “sexual orientation” as a prohibited ground of discrimination in the Constitution applies to protect bisexual and transgendered individuals from discrimination.

Discrimination on the basis of gender, sex, and sexual orientation is also barred in specific sectors: housing (Rental Housing Act, 1999) and employment (Employment Equity Act, 1998 and Labour Relations Act, 1995).

In Atkins v Datacentrix (2009), the Labour Court found that the Employment Equity Act‘s and Labour Relations Act’s prohibition against discrimination on the basis of gender or sex includes discrimination against transgendered individuals.

Same-sex sexual activity is legal in South Africa: laws criminalizing anal sex between consenting adult males were declared unconstitutional and invalid by the Constitutional Court in National Coalition for Gay and Lesbian Equality v Minister of Justice (October 9, 1998); female same-sex activity was never criminalized.

The age of consent is the same for same-sex and opposite-sex sexual activity (Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007).

Same-sex couples can enter into marriages or civil partnerships (Civil Union Act, 2006).

Same-sex couples can adopt children jointly, and the same-sex partner of a parent can adopt his or her partner’s child (Children’s Act, 2005).

Equal protection against domestic violence is extended to individuals living in same-sex and opposite-sex domestic relationships (Domestic Violence Act, 1998).

South African citizens and residents can sponsor same-sex partners, whether married or unmarried, for permanent residence (Immigration Act, 2002).

Persecution on the basis of sexual orientation is recognized as a ground for asylum (Refugees Act, 1998).

Certain individuals (those who have undergone surgical or medical sex reassignment, intersex individuals, and those whose sexual characteristics have evolved naturally) may change their sex as recorded in the population registry (Alteration of Sex Description and Sex Status Act, 2003).

link to full text in PDF: South Africa-SOGI Legislation Country Report-2013-eng