COVID-19 and Africa Symposium: Centering the Margins–LGBT People and COVID-19

[Letlhogonolo Mokgoroane is an activist advocating for Sexual Orientation, Gender Identity and Expression (SOGIE) rights. They are also a founding member of the Cheeky Natives Podcast.]

The COVID-19 pandemic is an unprecedented global challenge that has exacerbated inequalities already prevalent in all regions of the world. In March 2020, the United Nations Independent Expert on protection against violence and discrimination based on sexual orientation and gender identity (IE SOGI) held a dialogue on the implications of the pandemic on lesbian, gay, bisexual, trans and gender-diverse (LGBT) persons.

The dialogue revealed that information received allowed the IE SOGI to conclude that COVID-19 has a disproportionate, adverse impact on LGBT persons’ enjoyment and exercise of their human rights; that, with few exceptions, the response to the pandemic reproduces and exacerbates the patterns of social exclusion and violence already identified by the IE SOGI; and that urgent measures must be adopted by States and other stakeholders to ensure that pandemic responses are free from violence and discrimination.

This blog takes a closer look at the impact of the COVID-19 pandemic on LGBT persons within the borders of South Africa.

Violence Against LGBT persons in South Africa

Activists in South Africa began this year with the residents of Thembisile Hani Local Municipality marching against gender-based violence on 2 January after the brutal murder on 29 December 2019 of Portia Mtsweni, a lesbian woman in Tweefontein, Mpumalanga. Shortly thereafter, transgender rights activist, Nare Mphela, was brutally stabbed to death in her own home in Limpopo.

While we were still mourning the death of Nare Mphele, we were shocked to hear the news of the murder of  Lindokuhle Cele, a budding young LGBT rights activist and Durban-based musician.  Cele was murdered in public and it appears that there were people who could have prevented this crime but did not.

As we were seeking justice for Lindokuhle, we found ourselves lost for words as yet another one of us was killed.  As people woke up on the morning of  21 March – national Human Rights Day in South Africa – we received the devasting news that a Liyabona Mabishi, a 16 year old lesbian woman – was stabbed in Khayelitsha near Cape Town. In what appears to have been a hate crime motivated by her sexual orientation, she was stabbed 13 times and later died because of these wounds.  A few months later, we had the sad news that well-known dancer, choreographer, and LGBT rights activist, Kirvan Fortuin, was killed in Macassar near Cape Town, allegedly stabbed by a teenager.

More recently, in September, there were reports of two hate crimes in Port Elizabeth; the assault of 25-year old Siphosethu Nkololo by a taxi driver who pushed her from his vehicle and drove over her foot, and the murder of Shanice Jonathan – a mother living in Schauderville – allegedly raped and killed because of her sexual orientation. On the other side of the country, Zinhle Sekgoapa, a 14-year-old lesbian girl in Mpumalanga was initially kidnapped and was later found dead near a pit-latrine.

This catalogue of appalling violence are merely the cases that we are aware of because they have received some visibility in the media. But there are many others that we may not be aware of. 

Discrimination in access to healthcare services

In addition to the murder of LGBT people, we also experience  discrimination in access to healthcare. There have been reports that members of our community  have been discriminated against when attempting to access healthcare services because of their sexual orientation, gender identity and expression. These experiences often deter us from seeking medical care in future, leading to a denial of basic human rights, such as the rights to health, dignity and life, which are recognised in the South African Constitution as well as international law. This denial of access to healthcare is in direct violation of the Yogyakarta Principles, which were developed based on international human rights law and provide detail on States’ binding obligations regarding protection against violence and discrimination on the grounds of sexual orientation, gender identity and expression (SOGIE) and relate to the full range of human rights.

Principle 17 of the Yogyakarta Principles sets out concrete recommendations of measures necessary for States to facilitate access to healthcare for LGBT persons without discrimination. Some examples include: the non-discriminatory provision of sexual and reproductive healthcare, goods, services and facilities; and access “by those seeking body modifications related to gender reassignment to competent, non-discriminatory treatment, care and support”. Despite South Africa’s binding obligations under international human rights law, LGBT persons continue to face systemic discrimination and barriers in their access to healthcare, goods and services.

Exclusion and overlooking of LGBT refugees and asylum seekers

Human Rights Watch has reported that the South African government’s COVID-19 aid programs, including provision of food parcels, have overlooked refugees and asylum seekers. This includes many LGBT people who have fled to South Africa to escape persecution.

South Africa is a common destination for LGBT people fleeing their home countries due to persecution on the basis of their sexual orientation, gender identity or expression. The Refugees Amendment Act of 2008 expressly includes persecution on the basis of sexual orientation as a ground for seeking asylum in South Africa. Out of the 70 countries that continue to criminalise consensual same-sex conduct, 33 are in Africa. Across the continent, discriminatory laws and hostile social attitudes lead many LGBT people to flee their own countries and travel to South Africa, often against considerable odds, to seek asylum and a better life.

Victor Chikalogwe, director of the LGBT refugee advocacy group People Against Suffering, Suppression, Oppression and Poverty (PASSOP), has said that the lockdown induced by the COVID-19 pandemic has made life incredibly difficult for many undocumented LGBT migrants, refugees, and asylum seekers, as they are unable to work in the informal trades that have sustained them, including restaurants, bars or sex work. They are also not eligible to receive government social grants or food parcels, which are distributed only to those with South African identity cards and Social Security cards. The further discrimination faced by LGBT asylum seekers in South Africa on account of their sexual orientation compounds this already difficult and dangerous reality.

On March 24, The African Commission on Human and Peoples’ Rights expressed concern about the vulnerability of refugees and asylum seekers under Covid-19 regulations and addressed a letter to South African President Cyril Ramaphosa, who currently serves as African Union Chairperson, urging the South African government to adequately address human rights challenges in its responses to Covid-19. In addition, on May 12, 2020, the rapporteur for South Africa of the African Commission on Human and Peoples’ Rights, Solomon Ayele Dersso, sent an urgent appeal to the government to protect the human rights of  refugees, asylum seekers and migrants, in the context of the lockdown.

Protecting human rights should include ensuring that undocumented refugees and asylum seekers in South Africa have access to basic services.  In this regard, it is worth noting that the South African government initially excluded asylum seekers from COVID-19 relief measures. This Relief was a form of social relief to alleviate the effects of the pandemic. The Scalabrini Centre successfully challenged the exclusion of asylum seekers from the relief programme in court. The court order enables people who hold asylum-seeker and special permit status in South Africa[I1] , whose documents were valid at the start of the National State of Disaster to apply for the Social Relief of Distress grant.

LGBT lives matter and so do human rights

In the end, we think to cast our eyes to resolution 275  of the African Commission on Human and Peoples’ Rights. This resolution is on Protection against Violence and other Human Rights Violations against Persons on the basis of their real or imputed Sexual Orientation or Gender Identity.  The Resolution calls on States to ensure that LGBT human rights defenders work in an enabling environment that is free of stigma. It also requires States to ensure proper investigation and diligent prosecution of perpetrators of acts of violence and discrimination against LGBT persons??, and the establishment judicial procedures responsive to the needs of victims.

In order to ensure that no one is left behind, we need to ensure that we protect the rights of LGBT persons. How do we do this? We start by ensuring that we hold our government accountable to its obligations as set out in the Constitution, as well as under regional and international law frameworks. Our human rights will mean nothing in the end if the government does not take these obligations seriously.

Importantly, in the context of COVID-19 more than ever, we need our government to take active measures to combat hatred and discrimination by individuals and groups – to declare that our lives, as queer people, matter.