Protecting LGBTI asylum seekers: a short history of South Africa's global leadership

Updated: Mar 26

Section 3(a) of South Africa’s Refugees Act [1] provides explicit protection to people seeking refuge from persecution on the basis of sexual orientation and/or gender identity (SOGI). While other major asylum-recipient countries provide for asylum on this basis, South Africa’s explicit legal protection is globally exceptional. Section 3(a) emphasizes the country’s commitment to protect gender and sexual minorities, and in principle streamlines administrative processes for state officials who adjudicate asylum cases based on SOGI.


In this entry I explore some of the socio-political conditions that made possible South Africa’s leading role on lesbian, gay, bisexual, transgender, and intersex (LGBTI) asylum seeker rights. I do so to highlight South Africa’s global leadership in this area of asylum law, and to frame how readers understand shortcomings in the Refugees Act’s contemporary application. [2] For broader context I refer readers to the following thought leaders on sexualities, gender, and movement in South Africa: Zethu Matebeni, B Camminga, Guillain Koko, Ingrid Palmary, Surya Monro, Deborah Posel, John Marnell, Mark Gevisser, and Victor Mdluli Chikalogwe.


I write this abridged legal history as a descendant of a Jewish South African, who was designated white by the Apartheid state. My mother emigrated to the United Kingdom in 1980, and then to the United States in 1991. I grew up in the US. My family’s migration history contextualizes my intellectual interests in violence and statehood, and my academic training in gender and sexualities studies frames my approach. My dissertation analyzes how South African officials and lawyers apply the 3(a) section of the Refugees Act.


An abridged history of twentieth century South African migration policies


For most of the twentieth century, South Africa used migration policies to secure socioeconomic dominance for people the state identified as white and heterosexual.

For pre-Apartheid South Africa, “white” meant an English-speaking, pale-skinned, person who could recite British history, and went to church. The Union of South Africa’s (1910 – 1961) 1913 Immigration Regulation Act initiated an era of immigrant control that focused on excluding immigrants from the Indian subcontinent, while allowing for European immigration. [3] My mother’s family was part of an influx of Jewish people from Lithuania in this time (1880s – 1910), in advance of pogroms in Eastern Europe.

South Africa freed itself from British control after the First World War. This phase of South Africa’s migration policies became part of an effort to refine the state’s definition of whiteness. In the interwar period, Jews did not meet this definition, and for that reason during the 1920s and 30s, the country adopted de facto restrictions on Jewish immigration.[4]


Early twentieth century South African migration policies were also selective of citizens based on gender and sexual expression. South African law stems from Roman Dutch common law, which naturalizes vaginal-penile penetration between two bodies perceived as different genders. Hence early South African policies worked to exclude from the state people officials believed to have engaged in sexual activities outside that category. [5] The 1914 Immigration Act prohibited persons convicted under laws criminalizing sodomy or ‘unnatural offences’ from settling in South Africa. [6]


South Africa is not unique in using migration policies to select citizens based on race/ethnicity, gender, and sexuality. David Scott FitzGerald and David Cook Martín detail the Americas’ racially selective migration policies. [7]Margot Canaday [8] and Eithne Luibhéid [9] describe the US’ use of migration policies to select citizens based on officials’ perceptions of applicants’ sexuality and gender. Modern states use laws about migration to select for ideal citizens. Notions about what constitutes that idealness are influenced by the politics and inequalities of the time and place.


Given the selectiveness of South Africa’s early twentieth-century migration policies, it is perhaps unsurprising that the Apartheid government (1948 – 1994) refused to develop a refugee policy. The inclusion of refugees – a category of persons international law constructed after the Holocaust as non-white – did not meet the Apartheid government’s goals. The National Party rejected the United Nations (UN) Convection and Protocol Relating to the Status of Refugees [10],[11] and the Organisation for African Union (OAU, now African Union, AU) Convention Governing Specific Aspects of Refugee Problems in Africa. [12], [13]



With the transition to democracy in 1994, the country pivoted in policy from prioritizing citizenship inclusions for people who met narrow definitions of racial/ethnic, sexual, and gender expression, to prioritizing inclusions for a diverse and multicultural citizenry. The Constitution of the Democratic Republic of South Africa (1994 – present) came into effect in 1996. It outlaws discrimination on the basis of, among other things, race and sexual orientation. Only a year after its democratic transition, South Africa joined the AU Convention (1995) regarding refugees. [14] A year after that, it joined the UN Convention and Protocol (1996) regarding refugees. [15] South Africa was among the last countries on the African Continent to join the international refugee regime.


In the 1990s, South Africa was duty-bound to put a refugee protection system in place. This duty was made more urgent by the fact that South Africa was rapidly becoming a major asylum destination. Twenty years after the passage of the Refugees Act, in 2018, South Africa was handling numbers of refugees and asylum seekers comparable to France. [16] Self-identified LGBTI people are among this group of movers, hailing from as far afield from South Africa as Cameroon (~3,000 miles), the Democratic Republic of the Congo (~2,000 miles), Kenya (~3,000 miles), Somalia (~4,000 miles), Tanzania (~2,000 miles), and Uganda (~3,000 miles). There are also LGBTI people from relatively closer by Malawi (~1400 miles) and Zimbabwe (~900 miles), whose migratory paths have long since been established.


The Refugees Act was passed in 1998 and came into force in 2000. Section 3 of that Act states that a person qualifies for refugee status if they have a well-founded fear of persecution by reason of their membership in a particular social group. Section 1(xxi) defines ‘social group’ to include, among others, a group of persons of particular gender,sexual orientation, disability, class or caste (emphasis added). [17] Although South Africa was late to join the refugee regime, within three years of doing so it led the world in providing explicit protections to people fleeing persecution related to SOGI.


Why did the South African Refugees Act explicitly include sexual orientation as a grounds for asylum in 1998? The context of local lesbian and gay rights organizing.


One possible reason why South Africa adopted the 3(a) clause when it did was that doing so would be consistent with the new Constitution.


In 1996, South Africa became the first country in the world to outlaw discrimination on the basis of sexual orientation in its national Constitution, notably irrespective of citizenship status. [18] The brief history above should give readers a sense of how revolutionary this legislative transition was in 1990s South Africa.


Pierre de Vos [19] writes that the constitutional adoption of gay rights resulted from a combination of activists’ strategic ideological framing (i.e. framing the struggle for sexuality-based inclusions as akin to the struggle for racial inclusion) and luck. The movement for lesbian and gay rights gained strength in the 1980s, in the throes of the anti-Apartheid struggle. Defiant Desire is an English-language collection of writings by an interracial group of South African lesbian and gay organizers. [20] Organizing against the Apartheid regime’s sexuality-based limitations was marred by the structural racism of the period.


It was not clear in the early 1990s that the fractured and grassroots lesbian and gay rights activism would translate into laws under the new regime. In late 1994, 43 gay and lesbian organizations formed the National Coalition for Gay and Lesbian Equality (NCLGE). [21] NCLGE was united largely by the urgency of the moment. They had a rare opportunity to translate their needs into policy under the democratic government. NCLGE ultimately managed to organize for the inclusion of a sexual orientation non-discrimination clause in the Constitution. [22]


After the democratic Constitution was passed in 1996, NCLGE set out to undo the sexuality-based legal harms of the Apartheid regime. In 1998, South Africa became one of the first countries in the world to remove its anti-sodomy laws. [23] By 2000, South Africa was among the world’s leading countries -- alongside Denmark, Ireland, the Netherlands, Norway, Spain, and Sweden -- committed in policy to gay rights in policy. [24] In 2002, the Constitutional Court granted same-sex couples the right to adopt. [25] In 2005, it became the fifth to legalize same-sex marriage. [26]


Perhaps South Africa provides for protection based on persecution related to SOGI because at the time that the Refugees Act was crafted in the 1990s, doing so was in keeping with South African legal norms. If this is the case, then we should thank the lesbian and gay activists who organized against the Apartheid regime and fought for the South African Constitution, not only for demonstrating to the world how foundational federal laws might include gender and sexual minorities, but also for their example of how countries might craft rules to protect them.


Why did the South African Refugees Act explicitly include sexual orientation as a ground for asylum in 1998? A geopolitical perspective.


Critics argue that South Africa’s adoption of a “global gay rights” agenda in the 1990s was part of the new country’s effort to signal a desire to join the international community, following years of global sanctions against the Apartheid regime. [27] It is possible the Refugees Act was part of this signalling effort.


South Africa wrote its Constitution amidst a global surge of liberalization of policies on homosexual relations. [28] US-based activists pioneered a notion of lesbian and gay liberation in the 1980s and early 90s. In the mid-1990s, this notion was translated into human rights language and propagated across the world. [29] It could be argued that South Africa’s adoption of non-discrimination clauses and gay marriage in this era served a symbolic function for the new democratic state. That is, adopting a gay rights agenda may have played into a narrative that “the new republic” was more modern and enlightened than its predecessor. This narrative bolstered South Africa’s involvement in the international community and trade.


The critique of South Africa’s symbolic motivations for adopting a global gay agenda contextualizes this troubling fact: today the country is praised for policies that in practice serve the needs of white and middle class, and not always Black and poor, South African lesbians and gays. [30] This indicates that some of the country’s policies specifically concerning sexual and gender minorities may be disjoint from local need. It is possible then that the adoption of these policies was motivated by outside factors.

The Refugees Act was also crafted and passed in the 1990s. And so, perhaps, 3(a) was part of South Africa’s larger effort to impress upon the international community its newfound morality, and thus its worthiness of inclusion in the global economy. This possibility is supported by a history of the involvement of international lawyers in the Act’s crafting. [31]


Conclusion


South Africa has since the early twentieth century used its migration policies to keep out people the state perceived as “non-white” or suspected of engaging in same-sex sex. During most of this period, the country was abnormally invested in not engaging the international refugee system. And yet in 1998, the country began providing explicit refuge at the time unheard of elsewhere in the world.


This history puts into context contemporary difficulties in bringing to fruition the liberal ideals of the Refugees Act. Soon after it was passed in 1998, the Refugees Act underwent revisions. In 2017 the Department of Home Affairs’ White Paper on International Migration articulated a shift away from an asylum system that recognized the right to protection as its underlying purpose. [32] Rather, the modern system focuses on controlling economic migration.Accordingly while South Africa accepted 15% of refugee status applications in 2011, by 2019 it accepted only 4% of applicants at the time of their second interview. [33] Though it is not possible to estimate the number of applicants who are denied status on the basis of SOGI, [34] the numbers are undoubtedly low. [35] Researchers and advocates should be mindful of the extent of the country’s legal pivot in the 1990s, when trying to make sense of its present shortcomings. The country may need more than twenty years after implementing its Refugees Act to establish precedent, norms, and institutions fit for its revolutionary policies.


In this entry, I identify some political context and regional activist debates that surrounded 1990s South Africa’s migration policy pivot -- regional legislative norms rooted in the Constitutional non-discrimination clause and geopolitical pressure to perform “liberalism” in the form of lesbian and gay rights. I hope for future work to identify the people who advocated for the inclusion of sexual orientation as a grounds for asylum in South Africa, as well as the contemporary advocates pushing for improvement in the law’s application. The history of this tremendous clause in asylum law is still being written.


About the author:

Miriam Gleckman-Krut (she/her) is a sociology PhD candidate at the University of Michigan (USA). She researches and teaches about gender, sexuality, violence, and the state. Her work is funded by the University of Michigan's Sociology Department, African Studies Center, Department of African and African American Studies, and International Institute, as well as the Social Science Research Council. For more information, please see her Department webpage (here).

[1] The Refugees Act No 130 of 1998. Available: https://www.gov.za/sites/default/files/gcis_document/201409/a130-980.pdf. [2] For an analysis of contemporary decision making for LGBTI+ applicants in South Africa, see: Mudarikwa, Mandivavarira, Miriam Gleckman-Krut, Amy-Leigh Payne, B. Camminga, John Marnell, Victor Mdluli Chikalogwe, and Ethan Billy Chigwada. Forthcoming. LGBTI+ Asylum in South Africa: A Review of Refugee Status Denials Involving Sexual Orientation and Gender Identity. Cape Town: Legal Resources Centre. [3] Peberdy, Sally. 2009. Selecting Immigrants: National Identity and South Africa’s Immigration Policies, 1910-2005. Johannesburg: University of Witwatersrand Press. [4] Ibid. [5] Cameron, Edward. 1994. “‘Unapprehended Felons’: Gays and Lesbians and the Law in South Africa.” Pp. 89–98 in Defiant Desire. New York: Routledge. [6] The 1914 Immigration Act is also part of the development of the country’s socio-legal notions about gender. See Camminga, B. 2019. Transgender Refugees and the Imagined South Africa: Bodies over Borders and Borders over Bodies. Johannesburg, Palgrave Macmillan. [7] FitzGerald, David Scott, and David Cook-Martín. 2014. Culling the Masses: The Democratic Origins of Racist Immigration Policy in the Americas. Cambridge: Harvard University Press. [8] Canaday, Margot. 2009. The Straight State: Sexuality and Citizenship in Twentieth-Century America. Princeton: Princeton University Press. [9] Luibhéid, Eithne. 2002. Entry Denied: Controlling Sexuality at the Border. Minneapolis: University of Minnesota Press. [10] United Nations High Commissioner for Refugees. 1951. Convention Relating the Status of Refugees. Available: https://www.unhcr.org/en-us/3b66c2aa10. [11] United Nations High Commissioner for Refugees. 1967. Protocol Relating to the Status of Refugees. Available: https://www.unhcr.org/en-us/3b66c2aa10. [12] Organization of African Unity (OAU). 1969. Convention Governing Specific Aspects of Refugee Problems in Africa. Available: https://bit.ly/3b5AyVx. [13] Crush, Jonathan, and David A. McDonald. 2001. “Introduction to Special Issue: Evaluating South African Immigration Policy after Apartheid.” Africa Today48(3):1–13. [14] African Union. 2019. “List of Countries That Ratified the African Union’s Convention Governing the Specific Aspects of Refugee Problems in Africa.” Available: https://bit.ly/3b49i9W [15] United Nations High Commissioner for Refugees (UNHCR). 2019a. “States Parties, Including Reservations and Declarations, to the 1951 Refugee Convention.” Available: https://www.unhcr.org/5d9ed32b4 Ibid. 2019b. “States Parties, Including Reservations and Declarations, to the 1967 Protocol Relating to the Status of Refugees.” Available: https://www.unhcr.org/5d9ed66a4 [16] United Nations High Commissioner for Refugees. 2019. UNHCR Global Trends: Forced Displacement in 2019. Copenhagen, DN: Statistics and Demographics Section. Available: https://www.unhcr.org/5ee200e37.pdf [17] The Refugees Act No 130 of 1998. [18] Mokgoro, Yvonne. 2004. Khosa and Others v Minister of Social Development and Others, Mahlaule and Another v Minister of Social Development. Available: http://www.saflii.org/za/cases/ZACC/2004/11.html. [19] de Vos, Pierre. 2001. “The Constitution Made Us Queer.” Pp. 194–207 in Law and Sexuality: The Global Arena. Minneapolis: University of Minnesota Press. [20] Gevisser, Mark, and Edward Cameron, eds. 1995. Defiant Desire: Gay and Lesbian Lives in South Africa. New York: Routledge. [21] de Vos. 2001. P. 439. [22] Cameron. 1995. [23] Ackermann, Justice Laurie. 1998. National Coalition for Gay and Lesbian Equality and the South African Human Rights Commission v The Minister of Justice and Others. Available: http://www.saflii.org/za/cases/ZACC/1998/15.pdf [24] Ferguson, Jason. 2020.“The Great Refusal: The West, the Rest and the Geopolitics of Homosexuality.” Presented at the Special Event: Weatherhead Forum “Rethinking Resistance Politics in Troubling Times: Transnational Queer Solidarity During COVID-19,” October, Zoom. [25] Anon. 2002. Du Toit v Minister of Welfare and Population. Available: http://www.saflii.org.za/za/cases/ZACC/2002/20.html [26] Sachs, Albie. 2005. Minister of Home Affairs and Another v Fourie & Another. Available: http://www.saflii.org/za/cases/ZACC/2005/19.html [27] Spruill, Jennifer. 2001. “A Post- With/Out a Past? Sexual Orientation and the Post-Colonial Moment in South Africa.” Pp. 3–16 in Law and Sexuality: The Global Arena, edited by D. Herman and C. Stychin. Minneapolis: University of Minnesota Press. See also: Sabsay, Leticia. 2013. “Queering the Politics of Global Sexual Rights?” Studies in Ethnicity and Nationalism 13(1):80–90. [28] Frank, David John, and Elizabeth H. McEneaney. 1999. “The Individualized Society and the Liberalization of State Policies on Same-Sex Relations, 1984-95.” Social Forces 77(3):911–43. [29] Hoad, Neville. 1999. “Between a White Man’s Burden and a White Man’s Disease: Tracking Lesbian and Gay Human Rights in Southern Africa.” GLQ: A Journal of Lesbian and Gay Studies 5:559–84. [30] Davids, Nadia, and Zethu Matebeni. 2017. “Queer Politics and Intersectionality in South Africa: An Interview with Zethu Matebeni.” Safundi: The Journal of South African and American Studies 18(2):161–67. [31] Barutciski, Michael. 1998. “The Development of Refugee Law and Policy in South Africa: A Commentary on the 1997 Green Paper and 1998 White Paper/Draft Bill.” International Journal of Refugee Law 10(4):700–724. [32] Scalabrini Centre of Cape Town. 2017. What Is the White Paper on International Migration? Cape Town. Available: https://bit.ly/3v4k5ZQ. [33] Amnesty International. 2019. Living in Limbo: Rights of Asylum Seekers Denied. AFR 53/0983/2019. Johannesburg, South Africa. Available: https://www.amnesty.org/en/documents/afr53/0983/2019/en/ [34] In 2019, I submitted an access to information request to the Department of Home Affairs. I asked (a) how many people applied in South Africa for protection based on their membership in a particular social group; and (b) how many people applied for protection based on persecution related to sexual orientation persecution. Director of Legal Claims at Department, replied on 5 March 2019: “The applications for asylum are not classified as per your request and therefore we are unable to further process your request.” In 2018, Camminga requested data on the number of people applying for asylum on the grounds of persecution related to sexual orientation or gender identity, and numbers of refugee statuses awarded. They received almost an identical reply (Camminga 2019, p. 274). [35] Magardie, Sheldon. 2003. “‘Is the Applicant Really Gay?’ Legal Responses to Asylum Claims Based on Persecution Because of Sexual Orientation.” Agenda: Empowering Women for Gender Equality 55:81–87. See also: Palmary, Ingrid. 2016. Governing Morality: Placing Gender and Sexuality in Migration. Palgrave Macmillan.