Project Description

Continuing with the discourse on human rights challenges in the context of HIV, and the HIV response, this issue of the ALQ highlights some of the causes, forms and effects of stigma and discrimination.

Based on the recognition that stigma and discrimination persevere to impact as much on peoples’ risks to HIV and related rights abuses, as on the ‘success’ and effectiveness of the HIV response, the various articles explore the extent to which different aspects of legal and social environments are indeed ‘supportive and enabling’.

March/April 2013
ALQ
A Publication of the AIDS Legal Network
Ann Strode
The HIV epidemic has
always been characterised
by high levels of stigma and
discrimination against persons
infected or perceived to be
infected with the virus.1 The
South African experience has
been no different with initial
legislative responses to HIV
being discriminatory2. This
was to be expected given
the perception that it was firstly, a disease of
‘black people’ who were already second class
citizens. A member of parliament noted at the
time ‘the terrorists are now coming to us with
a weapon more terrible than Marxism: AIDS’3.
Secondly, a belief that it was a ‘gay plague’,
with gay men being a group who were also
stigmatised and marginalised
through the criminalisation
of same-sex relationships.
However, since 1994 the new
government has committed
itself to the outlawing of
unfair discrimination against
people living with HIV.
Resultantly, a number of new
laws and policies have been
put in place to address unfair
discrimination based on a
person’s HIV status.
Introduction
This article reflects on the legal framework for outlawing
unfair discrimination. It submits that nineteen years into
our emerging democracy is an opportune time to interrogate
this commitment to non-discrimination and to ask, where
have we come from? Where are we now? What have we
achieved? What still needs to be done?
Game over or back to the beginning..?
A reflection on nineteen years of legal and policy reform to prohibit
HIV-related discrimination in South Africa
Human rights
must be
non-negotiable…
No matter what…
age, sex, gender,
sexual orientation, and/or HIV status
Who have you
discriminated against lately?
The AIDS Legal Network is a human rights organisation committed to the promotion, protection and realisation of
fundamental rights and freedoms of people living with – and affected by – HIV and AIDS
Published by the AIDS Legal Network • PO Box 13834, Mowbray, 7705 • TEL.: +27 21 447 8435 • FAX.: +27 21 447 9946
www.aln.org.za
2 Editorial
March/April 2013 ALQ
Continuing with the discourse on human rights challenges
in the context of HIV, and the HIV response, this issue of
the ALQ highlights some of the causes, forms and effects
of stigma and discrimination.
Based on the recognition that stigma and discrimination persevere
to impact as much on peoples’ risks to HIV and related rights abuses,
as on the ‘success’ and effectiveness of the HIV response, the various
articles explore the extent to which different aspects of legal and social
environments are indeed ‘supportive and enabling’.
Reflecting on 19 years of legal and policy reform to prohibit
HIV-related discrimination, Ann Strode raises the question of ‘game
over or back to the beginning’. The article highlights that despite
‘considerable efforts’ made to create a legal framework prohibiting unfair
discrimination against people living with HIV, people continue to face
‘multiple layers of discrimination’ based on and in the context of HIV.
Given this prevailing gap between rights and realities, she argues that
we must ‘move away’ from creating frameworks to ensuring ‘that it works
for people’, which requires a ‘new’ approach – ‘an approach that cannot
focus on the law alone’.
A growing knowledge and evidence base on HIV-related rights
abuses is arguably a key element of ensuring effective responses to
stigma and discrimination. Findings from a 2012 study on perceptions
and experiences of HIV-related stigma and discrimination in the
Northern Cape and North West are introduced by Johanna Kehler.
She argues that the study not only reveals the multiple risks and
effects of rights violations upon HIV status disclosure, as people ‘fear
to be known’, but also underscores the great disconnect between
communities’ perceptions and peoples’ experiences of HIV disclosure
and its consequences. Moving towards creating an ‘enabling’, ‘supportive’
and ‘safe’ environment for HIV disclosure, the study clearly points
to the dire need that ‘we as people should change our attitudes and
stop discriminating’.
The ‘prejudices of others’ are one of the well-recognised elements
causing stigma and related rights abuses. Premised on the
understanding that ‘identities’ are always based on the ‘us’ and ‘them’
logic, Pierre de Vos explores the ‘oppressive and disciplining powers of
1. Game over or back to the
beginning…?
A reflection on nineteen years of legal
and policy reform to prohibit HIV-related
discrimination in South Africa
Page 1
2. Editorial
Page 2
3. T he best thing for me, is to keep
everything to myself…
Perceptions and experiences of
HIV-related stigma and discrimination
Page 11
4. A virulent form of identity politics…
Why there are no authentic Africans,
Afrikaners, women or homosexuals…
Page 19
5. A call to action…
Healthcare for lesbian, gay, bisexual and
transgender people
Page 23
6. T he National Sex Work Programme…
Towards universal services for
sex workers in South Africa
Page 30
7. In the best interest of children…?
Why the criminalisation of consensual
sexual exploration between teenagers
is unconstitutional…
Page 36
8. Given to anyone who fits in on the
time table…
Sex education in schools
Page 41
9. A human rights approach…
Page 48
Editorial… In this issue
Continued on page 4
3
Where have we come from? The right to
equality under apa rtheid
Early reports of stigma and discrimination against people
living with HIV related to HIV discrimination in families
and communities, in the workplace (with many employers
using pre-employment HIV testing and unfair dismissals
to exclude persons living with HIV from working), in the
healthcare sector (with denials of access to healthcare
services), in education (denying children with HIV access
to pre-schools), and in the insurance sector (where persons
testing HIV positive were denied access to life insurance).4
However, for people living with HIV facing discrimination
there were limited legal remedies, as there was no general
right to equality, Furthermore, for the most part, apartheid
laws aimed at systemic discrimination, particularly on the
grounds of race and gender5.
Given this context, it is not surprising that the
apartheid government’s initial responses to HIV were also
premised on stigmatising and discriminatory concepts
of people living with HIV. The government only passed
two HIV specific pieces of legislation pre-1994 and both
aimed at the active exclusion of people living with HIV
from various spheres of life, such as the workplace and
schools. These provisions were seen as valid mechanisms
for keeping the community ‘AIDS free’6.
ALQ March/April 2013
…equality provisions, which are
broad enough to encompass
discrimination based on a person’s
HIV status…
…the post-apartheid’s
HIV response has always
been premised on
human rights principles,
including the right to equality…
Game over or back to the beginning…?
Law Purpose Impa ct
Regulations issued under
the Aliens Control Act
Declare people living
with HIV or AIDS as
‘prohibited persons’
Immigration authorities given the power to
detain, deport or subject any person suspected
to be infected with HIV to a compulsory medical
examination
Used extensively to repatriate HIV positive foreign
mine workers back to their home countries
Regulations on
Communicable Diseases
and Notifiable Conditions,
1987
Declared AIDS as a
communicable disease
Enabled people living with AIDS to be removed from
schools, placed in quarantine etc
Table 1: Discriminatory apartheid laws on HIV
4 Editorial
March/April 2013 ALQ
essentialised identities’. Pointing to the
many forms in which ‘identity’ has been,
and continues to be, used to ‘justify’
that people are ‘unworthy’ of being
shown respect, to ‘silence critics’, and
to ‘enforce conformity’, he argues that
the re-emergence of ‘a virulent form of
identity politics’ poses a ‘serious threat’
to our democracy and freedoms.
Stigma and discrimination have
long been recognised as barriers (and
deterrents) to access to healthcare
services, with evidence showing that
stigma and discrimination determines
the extent to which people are in the
position to make informed choices
whether or not and when to access
services. Further elaborating on the
effects of prejudices and stigma,
Alexandra Muller looks at how a
‘queer identity’ impacts on the access to
‘appropriate’ healthcare for lesbian, gay,
bisexual and transgender people. She
emphasises that although transgender
people and men who have sex with
men are recognised as ‘key populations’
in the NSP, ‘little’ is done to ensure
that healthcare workers’ personal
prejudices are not the defining factors
for a patient’s treatment. Calling for
non-judgemental and ‘queer-affirming’
healthcare, she argues that we need
to ‘challenge our own prejudices’, so as
to ensure that ‘queer health issues’ are
on everyone’s agenda and the right to
equality and non-discrimination truly
expands to lesbian, gay, bisexual and
transgender people.
The need to decriminalise
sex work as a key element addressing
stigma and discrimination based on,
and in the context of, HIV has been
at the centre of the human rights
discourse for a long time. Yet, sex work
remains criminalised, thus not only
perpetuating HIV risks and related
rights abuses, but also maintaining
limited access to healthcare services
(and justice) for sex workers. The
National Sex Work Programme,
introduced by Sally-Jean Shackleton,
is arguably a ‘potential milestone’
towards ensuring both greater access
to health services and ‘sex work
appropriate healthcare’. Based on the
recognition of sex workers’ rights and
the principle ‘nothing about us, without
us’, sex worker ownership is central to
the ‘success’ of the programme.
Further elaborating on the ‘impact’
of criminal law as it relates to the
criminalisation of consensual sexual
acts, Pierre de Vos raises the question
as to whether or not it is in the best
interest of children to criminalise
consensual exploration between
teenagers. Introducing the recent High
Court ruling on the Sexual Offences
Act, he argues that the current law
provisions criminalising consensual
sexual acts will not only turn children
into ‘criminals’ for ‘exploring their sexual
awakening’, and discourage teenagers
from ‘seeking help’, but also reinforce
prevailing ‘social stigmas and taboos
around sexuality’ – which is neither in
the best of children nor constitutional.
The importance and role
of education in addressing
HIV-related stigma and discrimination
is often cited as one of the
‘effective’ responses. Similarly, ‘proper’
sex education in schools is commonly
seen as a key factor in the response
to HIV. Discussing the legal and
policy provisions, Precious Acker
examines the ‘quality’ and ‘adequacy’
of sex education in schools. Exploring
the ‘pros’ and ‘cons’ of the large amount
of autonomy given to educators in
the ‘actual practice of this course’, she
argues that as long as sex education
is ‘given to anyone who fits in on the
timetable’, the quality of sex education
will continue to rely on the individual
‘efforts’ and ‘disposition’ of the teacher
who ‘fits in’ – thus, continue to lack
‘universality’ and assurance of ‘quality’
sex education.
One of the recurring themes in all
the articles is as much the persistent
dichotomies between ‘enabling’ legal
environments and ‘disabling’ social
environments, as the ongoing call for
action to ‘move beyond commitments’, to
‘make rights work for people’, to ‘change
our attitudes’, and ‘challenge our own
prejudices’. Thus, the ‘real’ challenge
now seems to be ‘transforming’ the
very same societal context ‘nurturing’
and ‘condoning’ prejudices and stigma
against the ‘other’. Failing to do so,
social environments will continue to
override the progress made in creating
enabling legal environments…
Johanna Kehler
5
ALQ March/April 2013
Where are we now? The right to equality in
post-apa rtheid South Africa
Allegations of discrimination against people living with
HIV continued in the post-1994 period. For example, in the
HIV/AIDS/STD Strategic Plan for South Africa: 2000 – 2005
it was noted that a key constraining factor in HIV responses
was the
…continued high levels of discrimination and human
rights abuses of people infected and affected with
HIV/AIDS.7
However, legal redress now exists, as in the post-apartheid
South Africa everyone has the right to equality8. Equality
includes the right to equal protection from the law, equal
access to all rights and freedoms, and the right to not be
unfairly discriminated against9. Although the equality clause
lists seventeen grounds on which there may not be unfair
discrimination, HIV is not one of them. Nevertheless, the
Constitutional Court has held that arbitrary discrimination
against people living with HIV is unfair and violates
Section 9 of the Constitution.10
People who are living with HIV constitute a minority.
Society has responded to their plight with intense
prejudice. They have been subjected to systemic
disadvantage and discrimination . As the present case
demonstrates, they have been denied employment
because of their HIV status without regard to their
ability to perform the duties of the position from
which they have been excluded. … The impact of
discrimination on HIV-positive people is devastating.11
Flowing from these constitutional principles the
post-apartheid’s HIV response has always been premised
on human rights principles, including the right to equality.
The government has also taken a number of legislative
steps to specifically outlaw HIV-related discrimination. It
has done this in two ways: firstly, through the introduction
of HIV-specific laws and secondly, through more general
equality provisions, which are broad enough to encompass
discrimination based on a person’s HIV status.
HIV specific laws which prohibit unfair discrimination on
the grounds of HIV status
There is only one HIV specific law prohibiting unfair
discrimination on the basis of a person’s HIV status, this
is the Employment Equity Act of 1998. This Act prohibits
unfair discrimination in any employment policy or practice
on various grounds, including an employee or job applicant’s
HIV status. Section 6 of the Act provides that
…no person may unfairly discriminate, directly or
indirectly, against an employee, in any employment
policy or practice.
Game over or back to the beginning…?
… testing of an employee to
determine that employee’s
HIV status is prohibited, unless
such testing is determined to be
justifiable by the Labour Court…
…a well-established legal
framework for prohibiting
HIV-related discrimination
in South Africa…
6 Game over or back to the beginning…?
March/April 2013 ALQ
This prevents employers from using HIV test results,
or other knowledge of an employee’s HIV status, in a
discriminatory fashion; for example, excluding HIV positive
job applicants, such as occurred in the Hoffman v SAA case12.
The Employment Equity Act provides further in Section 7(2)
that testing of an employee to determine that employee’s
HIV status is prohibited, unless such testing is determined to
be justifiable by the Labour Court. This expressly prevents
employers from using the practice of discriminatory
pre-employment HIV testing, which was previously practiced
in a number of sectors including the military, the South
African Police Services and on many mines13.
On 15 June 2012, the Minister of Labour supplemented
these provisions by providing guidance on how to implement
these principles in all workplaces through the publication of
the Code of Good Practice on HIV/AIDs and the World of
Work, which is attached to the Employment Equity Act. One
of the objectives of the Code is to
…eliminate unfair discrimination and stigma in the
workplace based on real or perceived HIV status,
including dealing with HIV testing, confidentiality and
disclosure.14
Furthermore, equality is a guiding principle underpinning
the Code:
Elimination of unfair discrimination remains a key
principle for protection of the rights of individuals.
There must be no unfair discrimination against or
stigmatisation of workers on the grounds of real or
…given that the legal framework is
protective, are further legal reforms
still required?…
Now more than ever
Human rights should be at the centre
of the response to HIV and AIDS
Because…
The protection of human rights is
the way
to protect the public’s health
7
ALQ March/April 2013
Game over or back to the beginning…?
What have we achieve d? Review of the extent
to which the law has been used to outlaw
HIV-related discrimination in South Africa
There is a well-established legal framework for prohibiting
HIV-related discrimination in South Africa. Although there
is only one expressed prohibition of HIV discrimination in
the Employment Equity Act, the Promotion of Equality and
perceived HIV status. It is the responsibility of every
worker and employer to eliminate unfair discrimination
in the workplace.
Non HIV-specific laws which prohibit unfair discrimination
on grounds broad enough to protect people living with HIV
There are also non-HIV specific laws, which contain
equality provisions in the key areas identified above and
could be used to protect people living with HIV against
unfair discrimination.
…it may be imperfect,
but it is protective…
…the allegations of on-going
discrimination relate to practices
prohibited by law…
Law Provisions Impa ct
Children’s Act
(No 38 of 2005)
Section 6 – in all decisions affecting
children they are unfairly discriminated
against on the basis of amongst others a
child’s ‘health status’
Section 130 – no child may be tested for
HIV unless it is in their best interests
Section 133 – a child’s HIV status may
not be disclosed without consent from
the child or their proxy consenter
Ensures that children are not unfairly
discriminated against due to their HIV
status and protects children against
discriminatory HIV testing, as well as
disclosure of HIV status, which could
result in discrimination
Medical Schemes
Act (No 131 of 1998)
and corresponding
Regulation 1262 of
20 October 1999
Prohibits the unfair exclusion of a
person from a medical scheme on the
basis of his or her ‘past or present state
of health’
Ensures that people living with HIV are
not arbitrarily excluded from medical aid
schemes simply because they are HIV
positive
Promotion of Equality
and Prevention of
Unfair Discrimination
Act (No 4 of 2000)
Outlaws all forms of unfair
discrimination
The Act does allow a person to bring
an HIV-related complaint on the basis
of ‘any other ground’ (i.e. an unlisted
ground), and it is likely that a court would
recognise HIV as an ‘unlisted’ ground for
unfair discrimination
Table 2: Non-HIV specific laws which protect people living with HIV from unfair discrimination
8 Game over or back to the beginning…?
March/April 2013 ALQ
there are no glaring gaps in the legal framework.This view
is supported by the current National Strategic Plan on
HIV/STIs and TB: 2012 – 2016 which appears to indicate
that law reform in this area is not a priority, as it provides
that there should be interventions to ensure (a) discrimination
on the basis of HIV and TB is reduced; (b) monitoring
mechanisms for tracking rights violations are put in place;
(c) discrimination, especially in the workplace, is reduced;
and (d) there is a reduction in the discriminatory access to
social services16. It does not propose specific legal reforms to
the framework on unfair discrimination.
Furthermore, Table 3 shows that many of the key
discriminatory practices, described above, have
in fact been outlawed during the last decade
through either HIV-specific or non-specific laws.
If some of the discriminatory practices have
been prohibited, what type of discrimination is
still prevalent? It appears that firstly, many of
the allegations of on-going discrimination relate
to practices prohibited by law, such as women
Prevention of Unfair Discrimination Act is broad enough to
ensure that the right of people living with HIV to equality
could be enforced. There are also general equality provisions
in legislation, which result in protections for children and
persons purchasing or accessing medical aids.
The strengths of the current framework is that the
Promotion of Equality and the Prevention of Unfair
Discrimination Act is very broad and applies to both the state
and all persons. This means that it also protects persons not
covered by the Employment Equity Act, such as members of
the South African National
Defence Force, the Secret
Service, and the National
Intelligence Agency.
Furthermore, the Children’s
Act attempts to address
the underlying causes of
discrimination through, for
example, providing protections regarding the disclosure of
HIV status and requiring an HIV test to be in the best interests
of the child15.
What still needs to be done? On-going
advocacy issues
Given that the legal framework is generally protective,
are further legal reforms still required? It is submitted that
…more reflection is required on
the current status of the ‘game’…
Now more than ever
think human rights
www.aln.org.za Tel: +27 21 447 8435
Table 3: Discriminatory practices that have been outlawed by the
protective legal framework
Practice Outlawe d
Pre-employment HIV testing Yes
Dismissals for being HIV positive Yes
Denial of access to health care services Yes
Exclusion from pre-schools and other public schools Yes
9
ALQ March/April 2013
Secondly, it has been argued that, in the current era,
people living with HIV frequently face multiple layers of
discrimination.20 Thus, laws focusing narrowly on outlawing
HIV-related discrimination do not protect people living with
HIV from other forms of discrimination, which may be related
to, amongst others, their sexual identity, such as bisexuals, or
their profession, such as sex workers, or their gender, such
as women.21 South Africa’s constitutional framework requires
the outlawing of a wide range of forms of discrimination,
thus protecting many previously margianlised groups.
Nevertheless, more work may be needed examining whether
discrimination is not being re-focused on other reasons; for
seeing some people living with HIV as different, perhaps
because they are refugees, gays or drug users. Reserach
is needed, into whether these forms of discrimination are
comprehensively prohibited by our legal framework.
Conclusions
Sadly, it is not ‘game over’ on the issue of HIV-related
discrimination, even though significant progress has been
made in creating a framework that protects people living with
HIV. It is argued that more reflection is required on the current
status of the ‘game’. Key questions to be raised include:
• Is the legal framework failing to stop discrimination?
If so, why?
• Are laws being properly resourced and implemented?
• Is there access to remedial legal action? If not,
what are the barriers for people living with HIV
accessing justice?
Game over or back to the beginning…?
living with HIV being sterilised without their consent, simply
because they are HIV positive17, or discriminatory dismissals18.
In other words, the on-going discriminatory practices flow
from a lack of enforcement of protective laws. This view
was echoed by two South African civil society participants at
the African Regional Dialogue on HIV and the Law who
noted that :
Even 30 years into the disease stigma is very much
alive, in families and communities. For example,
using health care facilities such as dedicated clinics
for HIV testing or ARVs, results in people living with
HIV being marked and makes them stigmatised. It
dehumanises people and this discourages them from
accessing treatment – sending them to an early death.
[Civil Society Participant, South Africa]
Where laws exist there is no implementation of the law.
The law which is meant to protect people living with
HIV means nothing if it is not enforced by the very
people who are meant to help those living with this virus.
[Civil Society Participant, South Africa]19
It is submitted that although considerable effort has
been put into creating a legal framework to prohibit unfair
discrimination against people living with HIV in South
Africa, focusing future advocacy on refining the framework
would be wasteful.
…an approach that cannot focus
on the law alone…
…it appears that we must move
away from building the framework
to ensuring that it works for people
living with HIV…
10Game over or back to the beginning…?
March/April 2013 ALQ
• Does the law protect all vulnerable propulations from
unfair discrimination?
• Is the legal framework meeting its objectives?
Should our focus shift more squarely to addressing
the underlying causes of discrimination through
programming?
In concluion, it is argued that in this next phase, we must
move away from building the framework to ensuring that it
works for people living with HIV – an approach that cannot
focus on the law alone. We must also broaden our lens and
realise the wide range of factors that make people living with
HIV suceptible to discrimination, and ensure that laws protect
all vulnerable groups. Game on!
FOOTNOTES:
1. United Nations Development Programme. 2012. Global
Commission on HIV and the law: Risks, rights and health. New
York.
2. Cameron, E, 1993. ‘Human Rights, Racism and AIDS: The New
Discrimination’. In: South African Journal of Human Rights, Vol 9,
Part 1.
3. Ibid.
4. Richter, M. 2002. ‘The research examines case files of the AIDS
Law Project during the periods 1993–2000’. Law, Democracy and
Development.
5. Brink v Kitshoff NO 1996 (4) SA 197.
6. Cameron, E. 1993. ‘Human Rights, Racism and AIDS: The New
Discrimination’. In: South African Journal of Human Rights, Vol 9,
Part 1.
7. HIV/AIDS/STD Strategic Plan for South Africa: 2000 – 2005
[www.info.gov.za/otherdocs/2000/aidsplan2000.pdf].
8. Constitution of the Republic of South Africa, Act 108 of 1996.
9. Ibid, Section 9.
10. Hoffman v SAA, 2000 (1) SA 1.
11. Ibid, para28.
12. Ibid.
13. South African Law Reform Commission. 1998. Second Interim
Report on Aspects of the Law Relating to AIDS. Pretoria, South
Africa.
14. Code of Good Practice on HIV/AIDS and the World of Work. 2012.
Regulation No 451, 15 June 2012.
15. Children’s Act, No 38 of 2005.
16. National Strategic Plan on HIV/STIs and TB, 2012. [www.info.gov.
za/view/DownloadFileAction?id=155622]
17. Strode, A., Mthembu, P &Essack, Z. 2012. ‘’She made up a choice
for me’: 22 HIV-positive women’s experiences of involuntary
sterilization in two South African provinces’. In: Reproductive
Health Matters. 20(39S),1, 6.
18. Allpass v Mooikloof Estates (PTY) Ltd t/a Mooikloof Equestrian
Centre 2011 (2) SA 638 (LC).
19. United Nations Development Programme. 2012. Report of the
African Regional Dialogue facilitated by the Global Commission on
HIV and the law. New York, USA.
20. United Nations Development Programme. 2012. Global
Commission on HIV and the law: Risks, rights and health.
New York.
21. Ibid.
…realise the wide range of factors
that make people living with HIV
suceptible to discrimination…
Ann Strode is a senior lecturer at the
School of Law at the University of KwaZulu Natal.
For more information and/or comments,
please contact her on StrodeA@ukzn.ac.za.
11
ALQ March/April 2013
Perceptions and experiences of HIV-related stigma and discrimination
Stigma and discrimination are well-recognised
as both causes and consequences of persistent
HIV risks and vulnerabilities. It is also widely
acknowledged that stigma and discrimination
impact on the extent to which information,
programmes and services are accessible and
beneficial to people at risk of, vulnerable to, and
living with HIV.
There has also been growing commitment to address
stigma and discrimination as an essential aspect of
effective responses to HIV.
…we must account for and address social and
legal environments that fail to protect people in
the context of HIV and/or block effective
HIV responses…1
Evidence shows that despite efforts to address stigma
and discrimination, stigma and discrimination persist
to impact as much on peoples’ risks to HIV and related
rights abuses, as on the effectiveness of HIV responses.
As such, stigma and discrimination continue to determine
not only peoples’ risks of HIV exposure and transmission,
but also the extent to which people are in the position to
make informed choices as to whether or not and when to
access services.
The best thing for me, is to keep
everything to myself…
Perceptions and experiences of HIV-related stigma and discrimination
Johanna Kehler
12Perceptions and experiences of HIV-related stigma and discrimination
March/April 2013 ALQ
Moreover, gendered inequalities, power relations,
and patriarchal systems, as well as prevailing prejudices
and exclusions, create social environments that further
manifest prevailing levels of stigma and discrimination
based on and in the context of HIV, despite the
enabling legal environment promoting equality and
non-discrimination.
Recognising the multiple causes, forms and effects
of stigma and discrimination in the context of HIV, it
seems imperative to address and transform the very
same societal norms and values, as well as prejudices
that cause, manifest, perpetuate, and at times condone
and justify, HIV-related stigma, discrimination and
other violations of rights. Thus, for programmes and
interventions to carry the potential to effectively
address stigma and discrimination, it is crucial to ‘better
understand and address the factors that contribute to
vulnerability to HIV and impede service access’2, which
…well aware of the risks associated
with HIV status disclosure…
…the fear of lack of confidentiality
and healthcare workers’ attitudes…
Now more than ever
Human rights should be at the centre
of the response to HIV and AIDS
Because…
Despite much rhetoric,
real action remains lacking
13
ALQ March/April 2013
Perceptions and experiences of HIV-related stigma and discrimination
includes various causes, forms and effects of HIV-related
stigma and discrimination.
It is within this context that the AIDS Legal Network
(ALN), in collaboration with partner organisations,
engaged in a study project intended to assess and
document perceptions and experiences of stigma and
discrimination based on and in the context of HIV,
and to enhance the knowledge and evidence base on
HIV-related rights abuses. The data presented here
forms part of a broader study which took place in five
areas, namely Lethabong and Phatsima in the North
West, and Beaconsfield, Galeshewe and Barkly West
in the Northern Cape between May and October 2012.3
HIV status disclosure
Responses reveal that communities are well aware
of the risks associated with HIV status disclosure, and
knowledgeable about the right to choose whether or not
and when to disclose one’s HIV positive status. Yet, the
majority of community members participating in the study4
felt strongly that people need to disclose their HIV status,
for reasons of ‘support’ from family and friends; and as
HIV disclosure is ‘better’ for peoples’ health and
well-being, ‘because if you talk about it you won’t have
stress and will live a healthy life’5.
…it is very important…you must disclose, so that
you get that support from your household…6
Contrary to communities’ perceptions of families and
friends as a source of support and comfort for people
living with HIV7, peoples’ experiences of HIV disclosure
are often linked to blame, insults, humiliation, rejection
and abuse by family and friends, as well as partners’
violent reactions.
…stigma and discrimination persist
to be as much a consequence of, as
a barrier to, HIV disclosure…
We as people
should change our attitudes…
PERCEPTIONS AND EXPERIENCES OF
HIV-RELATED STIGMA AND DISCRIMINATION
IN THE NORTHERN CAPE AND NORTH WEST, SOUTH AFRICA
Johanna Kehler
14Perceptions and experiences of HIV-related stigma and discrimination
March/April 2013 ALQ
…you are so scared to fetch your medication,
because you feel ashamed and embarrassed…10
For many people living with HIV, accessing healthcare
services is often accompanied by the fear of lack of
confidentiality and healthcare workers’ attitudes, greatly
impacting on both access and adherence to treatment,
because ‘our clinic doesn’t treat people with respect
or privacy’11.
…we fear to be known…people here would
prefer going to private clinics or not going to
clinics at all…1
HIV status disclosure consequences
The study also confirmed that stigma and
discrimination persist to be as much a consequence of,
as a barrier to, HIV disclosure. The fear of stigma and
discrimination also affects decisions as to whether or not,
when and to whom to disclose one’s HIV positive status,
because ‘we are so afraid to disclose13’ and ‘once they
know your status, they start to discriminate’14.
…once people start to know my status they will never
treat me like before…they will start reacting funny
around me, judge me and gossip a lot about me…
I’d rather keep it to myself…I won’t say anything
to anyone…15
…she is talking about my HIV status without my
permission; she even tells people on the street…this
is not right, because I didn’t want people to know…
sometimes, I am scared to go on the street fearing
that people will start pointing fingers at me…8
These responses arguably underscore not only the
great disconnect between communities’ perceptions
and peoples’ experiences of HIV disclosure and its
consequences, but also the societal pressure, expectations
and responsibility placed on people to disclose their
HIV positive status, despite the knowledge of the risks
associated with such disclosure.
The study exposed a similar disconnect between
perceptions and experiences in relation to healthcare
provision, in that community members believe
that people living with HIV are ‘treated well’ and
‘supported’ in clinics and hospitals9, while people
experience clinics and hospitals as ‘unsafe’ and
‘abusive’. Talking about their experiences, people
living with HIV recalled incidences of being
ill-treated, shouted at, humiliated and abused, as well as
incidences of healthcare workers refusing to assist them.
…deterring people from accessing
healthcare services…
15
ALQ March/April 2013
Perceptions and experiences of HIV-related stigma and discrimination
whether or not to access
HIV testing services –
thus deterring people
from accessing healthcare
services, whilst at the
same time impeding the
effectiveness of the national response to HIV.
…I will not go to the clinic to get tested…we
are too afraid of the wold knowing and turning
against us…21
…people are scared to go to the clinic; because
they are scared the nurse will discuss their status
or break their confidentiality…22
HIV non-disclosure consequences
Although knowledgeable of everyone’s right to choose
whether or not to disclose one’s HIV status, responses
further suggest that people who choose not to disclose their
HIV status are nevertheless assumed to take the
responsibility for their partners’ HIV acquisition.23 It
is these beliefs that not only perpetuate the perceptions
Responses clearly illustrate that communities are
largely perceived to be ‘unsafe’ environments for people
living with HIV, since ‘to be positive in this community is
dangerous’16, and people will be ‘rejected’, ‘judged’ and
‘discriminated against’ by fellow community members as
a result of their HIV positive status becoming known17.
…the community here, they don’t treat people right,
if they are positive…they discriminate…18
…when people find out that you are HIV positive,
they start to discriminate you and ignoring that you
have rights too…19
However, these levels of awareness of the risks
associated with HIV status disclosure seem to have little
impact on the perceived need for people living with HIV
to disclose their HIV positive status, based on the belief
that ‘not to disclose your status is wrong’20.
High levels of HIV-related stigma, discrimination
and other rights abuses also impact, amongst other, on
peoples’ health seeking behaviour, including decisions
Are we really
protecting human rights?
www.aln.org.za
…assumed to take the
responsibility for their partners’
HIV acquisition…
16Perceptions and experiences of HIV-related stigma and discrimination
March/April 2013 ALQ
that people who know of their HIV positive status are
solely ‘responsible’ for the ‘protection’ of their partner
(as compared to both partners being responsible for
preventing the risk of HIV exposure and transmission),
but also manifest the understanding that not disclosing
one’s HIV positive status is thus ‘wrong’ and needs to
be ‘punished’.
More specifically, more than a third of community
members participating in the study felt strongly that
people ‘must be punished for infecting innocent people’24,
because ‘they are committing a crime by infecting their
partners’25 – thus, they should be ‘sued’ and held ‘legally
responsible’ for HIV transmission.
…they should have been honest…they destroyed
a life…26
…because he has lied about his status, so I think he
should be sued, because he shamed my marriage…27
Again, these responses clearly underscore that
the knowledge of stigma, discrimination, violence
and other abuses subsequent to HIV status disclosure
seems to have little effect on community members’
perceptions of the ‘need’ for, and ‘rightfulness’ of,
HIV disclosure. At the same time, the need for
HIV disclosure appears to be linked mostly to the
perceived responsibility of people living with HIV to
‘protect others’; disregarding not only everyone’s right
to choose whether or not, when and to whom to disclose
one’s HIV status, but also everyone’s ‘responsibility’ to
prevent the risk of HIV exposure and transmission.
…each person has the responsibility to protect
themselves, you cannot blame anyone for something
you took part in…28
Where to form here…
…we as people should change our attitudes and
stop discriminating…29
Responses clearly illustrate that although community
members are aware and knowledgeable about the risks
associated with HIV disclosure, they feel strongly
that people living with HIV need to disclose their
HIV status – thus implying that the perceived need for
HIV status disclosure outweighs the knowledge of the
risks associated with such disclosure.
The study also underscores that despite the knowledge
of the right to choose whether or not to disclose one’s
…perpetuating the assumed
responsibility of people living with
HIV to disclose their HIV status…
17
ALQ March/April 2013
Perceptions and experiences of HIV-related stigma and discrimination
HIV status, people who choose not to disclose their
HIV positive status are likely to be subjected to stigma,
discrimination, abuse and other rights violations based
on their decision – thus further perpetuating the assumed
responsibility of people living with HIV to disclose their
HIV status and to ‘protect others’.
Although the data affords a general trend of
community perceptions in these areas, responses also
clearly point to the varying degrees of understanding
between areas – thus emphasising the need for intensified
awareness raising and capacity building.
According to communities, ‘something needs to
be done’ to end the violence against people living with
HIV. Communities specifically mentioned the need
for ‘awareness raising and education’, as well as the
need for people living with HIV to ‘speak out’, ‘stand
up for their rights’, and ‘take legal actions’ against
the perpetrators.
…they should stop the abuse and treat that person
with respect…30
And finally, the data seems to strongly suggest
that in order to ensure the protection and advancement
of rights of people living with HIV; the effectiveness
of programmes aimed at addressing HIV-related
stigma and discrimination; and to ensure enhanced
access to rights and services free of fear of stigma,
prejudice and violence, there is a great need to
advocate for and create sustained change in the
following areas:
Enhance levels of awareness • and understanding
of the various causes, forms and layers, as well as
effects, of stigma and discrimination based on and
in the context of HIV
• Address and transform societal beliefs and
prejudices manifesting, perpetuating and, to
an extent, condoning discrimination against
people living with HIV, so as to create
enabling and supportive environments for all
people to claim their rights and to have access
to services
• Build capacity on the rights protections in the
context of HIV, including the various mechanisms
…create enabling and supportive
environments for all people
to claim their rights and to have
access to services…
18Perceptions and experiences of HIV-related stigma and discrimination
March/April 2013 ALQ
for redress, among communities and service
providers, so as to ensure both decreased levels
of HIV-related rights violations and enhanced
access to redress as and when peoples’ rights have
been violated
Develop and implement • stigma mitigation
programmes that address the various causes,
forms and effects of HIV-related stigma and
discrimination, and truly respond to the realities
and needs of people living with HIV
FOOTNOTES:
1. This article is an edited version of the report presenting the research
findings. See Kehler, J. 2012. ‘We as people should change our
attitudes’: Perceptions and experiences of HIV-related stigma and
discrimination in the Northern Cape and North West, South Africa.
AIDS Legal Network, Cape Town. [www.aln.org.za/downloads/
Stigma%20and%20HIV%20Report.pdf]
2. UNAIDS. 2010. Getting to Zero, 2011 – 2015 Strategy, p24.
3. UNAIDS. 2012. Global Report, p81.
4. In total, 2379 community members participated in the study by
responding to a structured questionnaire. In addition, 130 incident
forms were collated, capturing individuals’ experiences of rights
violations, as well as access to redress.
5. Of all respondents, 72% believed that people need to disclose their
HIV status.
6. Woman, 40s, Barkly West, Northern Cape.
7. Woman, 40s, Galeshewe, Northern Cape.
8. Nearly half (44%) of all responded believed that family and friends
are supportive.
9. Experiences of HIV-related rights abuses as collated through
incident forms in Lethabong, North West.
10. Of all respondents, 68% believed that healthcare settings are
supportive environments.
11. Experiences of HIV-related rights abuses as collated through
incident forms in Beaconsfield, Northern Cape.
12. Woman, 60s, Barkly West, Northern Cape.
13. Experiences of HIV-related rights abuses as collated through
incident forms in Phatsima, North West.
14. Man, 20s, Phatsima, North West.
15. Woman, 20s, Barkly West, Northern Cape.
16. Man, 20s, Lethabong, North West.
17. Man, 40s, Beaconsfield, Northern Cape.
18. More than half, 57% of all respondents believed that HIV status
disclosure would have negative consequences at a community level.
19. Woman, 20s, Galeshewe, Northern Cape.
20. Woman, 20s, Phatsima, North West.
21. Man, 40s, Galeshewe, Northern Cape.
22. Man, 30s, Northern Cape.
23. Man, 20s, Beaconsfield, Northern Cape.
24. More than half of all respondents (57%) believed that the person
living with HIV would be ‘responsible’ for their partner’s
HIV acquisition.
25. Woman, 30s, Beaconsfield, Northern Cape.
26. Woman, 20s, Galeshewe, Northern Cape.
27. Woman, 20s, Barkly West, Northern Cape.
28. Woman, 50s, Lethabong, North West.
29. Woman, 20s, Beaconsfield, Northern Cape.
30. Woman, 20s, Phatsima, North West.
31. Man, 40s, Galeshewe, Northern Cape.
Johanna Kehler is the Director of the AIDS Legal Network
(ALN). For more information and/or comments,
please contact her on jkaln@mweb.co.za.
19
ALQ March/April 2013
A virulent form of identity politics…
Pierre De Vos
The re-emergence of a
virulent form of identity
politics poses a serious
threat to South Africa’s
democracy and the
freedom of its citizens.
Wherever one turns, there
are people who insist that
there is one authentic
way to be African,
Afrikaans, Zulu, Xhosa,
gay or lesbian, white,
black, heterosexual, Jewish, Christian, Muslim, or
atheist and that, if one does not conform to one
of these essentialist stereotypes, one is somehow
unauthentic and fake, not worthy of being shown
respect and of being taken seriously.
Identity is, thus, used to try and silence critics, to
enforce conformity and obedience within the group
and to banish those who refuse to perform their ‘essential’
identities from the policed group itself.
Growing up as a white
Afrikaans boy in the threatening
shadows of apartheid, I was,
of ten, told that certain beliefs
and actions and certain people
were ‘volksvreemd’ (alien
to the ‘Afrikaner nation’).
Beyers Naude, Bram Fischer
and Frederick van Zyl Slabbert
were volksvreemd. Listening to
Queen, The Rolling Stones and
The Beatles were volksvreemd
– unless one played their
songs backwards to identify
the dangerous messages from the devil supposedly
contained in them in order to confirm how volksvreemd
these bands really were. Being an atheist or criticising
National Party leaders, like BJ Vorster and PW Botha,
were volksvreemd. Dancing on a Sunday and being a
moffie were volksvreemd. Marrying an Engelse meisie
or, god forbid, sleeping with somebody classified as
‘Coloured’ or ‘African’ was beyond volksvreemd. And,
of course, opposing apartheid and supporting the struggle
against it was definitely volksvreemd.
A virulent form of identity politics…
Why there are no authentic Africans, Afrikaners, women or homosexuals…1
It’s not about
‘they’ and ‘them’
It’s about US!!!
Who have you
discriminated against lately?
The AIDS Legal Network is a human rights organisation committed to the promotion, protection and realisation of
fundamental rights and freedoms of people living with – and affected by – HIV and AIDS
Published by the AIDS Legal Network • PO Box 13834, Mowbray, 7705 • TEL.: +27 21 447 8435 • FAX.: +27 21 447 9946
www.aln.org.za
20A virulent form of identity politics…
March/April 2013 ALQ
Some people were devastated when branded
as volksvreemd. (Others rather revelled in being
excommunicated from the very ‘tribe’ in charge of
perfecting apartheid.) Volksvreemdes were often shunned
by family and friends, ridiculed and shamed, told that they
were not ‘true’ Afrikaners (whatever that might be). Their
views could, therefore, be ignored, laughed at or branded
as ‘dangerous’ or ‘inauthentic’. At best, they would be
pitied for having lost their way. At worst, they would
be banished.
The Afrikaner establishment, thus, attempted to police
the thoughts and behaviour of white Afrikaans speakers to
ensure that not too many of us would become critical of the
government or ask too many questions about the injustices
of the world we lived in and from which we benefited
socially and economically. We were told that there was
only one ‘right’ way to think about our world and our
place in it and one ‘right’ way to live, if we wanted to be
viewed as authentic Afrikaners.
I was recently reminded of this oppressive past
by several public statements. President Jacob Zuma
was reported as saying that black people should not
keep dogs as pets, because it is ‘un-African’. Then
Gillian Schutte, in a widely read open letter, called
on ‘white people’ to recognise that by jumping in on
national debates ‘that do not concern them’ they are
usurping a platform for ‘authentic black voices’. And on
14 January 2013 ANC spokesperson Jackson Mthembu attacked
Lindiwe Mazibuko for criticising President Jacob Zuma,
who said that one’s business will multiply if one donated
money to the ANC by stating that Mazibuko is ‘naïve when
it comes to African traditions’, which she cannot relate to.
Mthembu said in a statement that
…it is our tradition as Africans that if someone gives
you something, in return you thank him/her and wish
them prosperity and abundance…
What all these comments may have in common, it
seems to me, is that they accept that there is a ‘right’ way
and a ‘wrong’ way to be African, and that those who are
‘real’ Africans are worthy of respect and to be listened to,
while those who are not, can be ridiculed and dismissed as
being un-African or need not be taken seriously. One either
has an authentic black voice or one is inauthentically black
(whatever that may mean). One is either a true African
…not worthy of being shown respect
and of being taken seriously…
…identity is, thus, used to try and
silence critics, to enforce conformity
and obedience within the group…
21
ALQ March/April 2013
A virulent form of identity politics…
(who likes people more than dogs, embraces a certain
traditional culture and rewards those who look after you)
or one is un-African and, therefore, lacks credibility,
authenticity and any authority to be taken seriously.
Some commentators even imply that the authentic,
‘truly African’, identity ought to be strictly policed and
that those who do not conform (because they have become
‘too white’, because they twang when they speak English,
because they sleep with members of their own sex, because
they have become too critical of their elders or the leaders
of the ANC) must be expelled
from the group and branded as
‘coconuts’ (sorry for having
to use this offensive term), or
race traitors.
Although I am referring to
African identity, I could just
as easily have used examples
showing how the identities
of women, gay men and
lesbians, Afrikaners, or Jews
are policed. A woman who
does not like to cook for ‘her
man’, or wears a miniskirt or is
not monogamous is suddenly not a ‘real’ woman. A gay
man who knows nothing about Judy Garland or does not
support same-sex marriage is suddenly told that he is in
denial about his sexuality. An Israeli who criticises the
occupation of Palestine becomes a self-hating Jew. An
Afrikaner who supports the ANC once again becomes a
volksvreemde verraaier.
By complaining about the oppressive and disciplining
power of essentialised identities, I am not denying the
fact that there are sometimes
strategic benefits to be had from
pretending to belong to a more
or less stable and fixed identity
group. Claiming to belong to
a marginalised identity group
helps us to resist oppression and
marginalisation and to challenge
the economic and social
dominance of the privileged
group, whose inferior opposite
we have been defined as.
That is why, for strategic
reasons, some of us resist
homophobic oppression by invoking our identities as
gay men and lesbians – even as we know that there are a
million ways to love and desire members of the same sex.
Some of us insist that it is important to address the effects
of past and on-going racial discrimination by pretending
…the oppressive and disciplining
power of essentialised identities…
Respect
You have the right to get it
You have the duty to give it
Who have you
discriminated against – lately?
The AIDS Legal Network is an organisation committed to the promotion, protection and realisation of human rights
of people living with – and affected by – HIV and AIDS
22A virulent form of identity politics…
March/April 2013 ALQ
that there is an easily identifiable group called ‘Africans’,
and that this category can be used to implement effective
and necessary redress policies – even as we know that
there are a million ways in which such ‘Africans’ can
choose to live their lives.
Ironically racism thrives on the assumption that all
people who are black (or all people who are white, for that
matter) are exactly the same; that they have no individuality;
and that people who belong to the despised race possess no
personal attributes and characteristics not associable with
their race. That is why the strategic use of identity categories
will not be without its problems and dangers.
Given the fact that identities are always based on
a ‘them’ and ‘us’ logic, and given that there is always a
hierarchy of dichotomous identities (heterosexual versus
homosexual; black versus. white; male versus female)
which allows members of the dominant identity group
(whites; heterosexuals, males) to exploit their cultural,
social and economic dominance and to benefit from it, this
kind of exploitation and oppression will only end if we
manage to destabilise or even destroy the logic of (and the
belief in) essentialist notions of identity categories, such
as race or sex or sexual orientation. The paradox is that we
need racial (and other) identity categories to resist racial
(and other forms of oppression), even as we run the risk
of thereby perpetuating the very system that we need to
destabilise or even destroy.
The only way out, so it seems to me, is to challenge
the notion that there is one authentic or true or inevitable
way in which one is supposed to be African, to be gay and
lesbian, to be white, to be a woman.
One should note that the only thing one really always
has in common with all other members of any of the
identity groups that one might associate with, is the shared
experience of either the oppression and marginalisation
caused by the prejudices of others or by the shared
experience of benefiting from being seen as a member of a
dominant identity group.
The rest is all drag.
FOOTNOTES:
1. An earlier version of this article has been published on
15 January 2013 on the Constitutionally Speaking blog.
[http://constitutionallyspeaking.co.za]
…claiming to belong to
a marginalised identity group
helps us to resist
oppression and marginalisation…
Pierre de Vos is a constitutional law professor at
the Department of Public Law at the University
of Cape Town. For more information and/or comments,
please contact him at Pierre.DeVos@uct.ac.za.
A call to action…
Healthcare for lesbian, gay, bisexual and transgender people
The South African Constitution guarantees access to healthcare for every citizen (Section 27). It also
stipulates that no one may be discriminated against on the basis of their sexual orientation (Section 9).
Sadly, these citizenship rights are all too often violated for people who identify as lesbian, gay, bisexual,
transgender (LGBT) or queer.
23
ALQ March/April 2013
Alexandra Muller
This article reviews the state
of healthcare for lesbian,
gay, bisexual, and transgender
people in South Africa and
examines relevant health policies.
It highlights health issues, faced
by lesbian, gay, bisexual, and
transgender people, and argues
for the inclusion of lesbian, gay,
bisexual, and transgender health
into health activists’ demands.
Queer is an umbrella term and refers to people who are
outside the mainstream, outside the norm as dictated by
society. Being queer is only one of numerous identities that
a person inhabits. It is often a powerful identity, because
queer people are marginalised and oppressed. But peoples’
racial and gender identities, bodily abledness etc. are just
as important in determining how a
person is perceived in society, and
which privileges they can access.
It is thus important to look at how
these identities intersect and play
out in their totality.
In this article, I will focus on
queer identity – sexual orientation
and gender identity – in the
understanding that these identities
are shaped by all other identities
as described.
Healthcare needs
Lesbian, gay, bisexual, and transgender people have
specific health and healthcare needs in various fields
from chronic disease risk, adult and adolescent mental
health, unhealthy relationships (for example intimate
partner violence), to sexually transmitted infections and
Healthcare for lesbian, gay, bisexual and transgender people
24Healthcare for lesbian, gay, bisexual and transgender people
March/April 2013 ALQ
Heterosexism is the assumption or belief that
everyone is and should be heterosexual and that
other sexual orientations are unhealthy, unnatural
and a threat.
Homophobia is the irrational fear of, hatred against,
or disgust towards homosexuals or homosexuality.
Sex is commonly understood as the classification of
a person as male or female at birth, based on bodily
characteristics such as chromosomes, hormones,
internal reproductive organs, and genitalia.
Gender is a socially constructed system of
classification that ascribes qualities of masculinity
and femininity to people. Gender characteristics can
change over time and differ between cultures.
Sexual orientat ion describes whom you are
intimately attracted to. People are attracted to
members of the same sex, of the opposite sex,
or both. Western society tends to think of sexual
orientation as expressing itself in three forms:
homosexual (gay or lesbian), heterosexual
(sometimes referred to as ‘straight’) or bisexual
(having both homosexual and heterosexual feelings).
People also identify as queer (refusing to fit into any
category) and asexual (not being sexually attracted
to people).
Heterosexual people are emotionally, physically
and sexually attracted to people of the opposite sex.
Homosexual people are emotionally, physically and
sexually attracted to people of the same sex.
Lesbian women are emotionally, physically and
sexually attracted to women.
Gay men are emotionally, physically and sexually
attracted to men.
Bisexual people are emotionally, physically and
sexually attracted to people of both sexes.
Gender identity is one’s basic sense of being
male or female or another gender. It usually, but
not always, matches the sex based on the external
genitalia present at birth.
Transgender describes a person whose gender
identity is different from the sex assigned at birth.
A transgender person may choose to adhere to the
gender role with which that person identifies. A
person who does not adhere to gender roles is called
gender non-conforming. It is important to recognise
that the gender binary (the view that they are either
male or female) does not describe the identity of
many people.
Queer is an umbrella term to refer to all LGBT
people, also a political statement, as well as a sexual
orientation, which advocates breaking binary
thinking and seeing both sexual orientation and
gender identity as potentially fluid. In the past
often used as a derogatory term for
non-heterosexual people.
Men who have sex with men (MSM) describes a
sexual practice. MSM can identify as gay, bisexual,
or straight.
Women who have sex with women (WSW)
describes a sexual practice. WSW can identify as
lesbian, bisexual, or straight.
[Taken from: ‘Understanding the Challenges facing
Gay and Lesbian South Africans’, available from
OUT LGBT Pretoria, and ‘Guidelines for primary care
workers providing care for transgender patients’,
available from Gender Dynamix, Cape Town]
Definitions and terminology
HIV infection1. HIV, which originated in the early 1980s
as so-called GRIDS – gay-related immune deficiency
syndrome – often shows higher infection rates in gay men
and transgender people. The focus of the HIV epidemic
in African countries, including South Africa, is usually on
women and children. This neglects the fact that lesbian,
gay, bisexual, and transgender people are equally, if not
more, at risk of contracting HIV. Various studies from
South Africa provide evidence that HIV prevalence
among men who have sex with men is higher than in the
general population.2
However, our current HIV education does not
acknowledge this at all. HIV counsellors assume that clients
are straight, practice heterosexual sexual practices, and
have partners of the opposite sex. Not only is this incorrect
– between five to ten percent of all people identify as
queer, and even more engage in same-sex activities – but it
creates dangerous norms in HIV counselling and testing. It
is a lost opportunity to provide adequate information about
HIV prevention, and places an already marginalised group
of people even more at risk.
Equally wrong and dangerous is the perception that
lesbian women, and other women who have sex with
women (WSW), are not at risk of contracting HIV. A recent
study of women who have sex with women in South
Africa, Namibia, Zimbabwe and Botswana found that
HIV prevalence among women who have sex with women,
as self-reported by study participants, was 9.6%3. HIV can
be transmitted between two women who have sex through
vaginal fluid or menstrual blood. Furthermore, many women
who have sex with women also have sex with men: almost
half of lesbian women reported to have had consensual
heterosexual sex. Furthermore, lesbian women are at higher
risk of experiencing sexual violence4, and this further
increases their risk of contracting HIV5.
However, lesbian, gay, bisexual, and transgender
people not only have special health needs when it comes to
infectious diseases such as HIV. Research shows that lesbian,
gay, bisexual, and transgender people experience higher
rates of depression and suicide attempts than heterosexual
25
ALQ March/April 2013
Healthcare for lesbian, gay, bisexual and transgender people
…does little to address
the challenge of
continuous heteronormativity and
homophobia in the health system…
…because they disproportionately
experience discrimination, stigma,
and violence, because of their
queer identity…
26Healthcare for lesbian, gay, bisexual and transgender people
March/April 2013 ALQ
people6. This is not because their sexual orientation or
gender identity predisposes them to mental health issues, but
because they disproportionately experience discrimination,
stigma, and violence, because of their queer identity.
Healthcare access
Compared with heterosexual and non-transgender
socio-economically matched peers, lesbian, gay, bisexual,
and transgender individuals are more likely to face
barriers accessing appropriate healthcare7. In our context
of heteronormativity and patriarchy, women and sexual
minorities are particularly vulnerable to ill-health. Many
patients who belong
to sexual minorities
experience healthcare as
an unsafe space, mostly
because of the attitudes
of healthcare workers,
including doctors. Recent reports from various South
African contexts highlight that gay men, lesbian women
and transgender people are discriminated against, insulted,
and sometimes even refused healthcare, when accessing
HIV services. Gay men can recount numerous experiences
of healthcare workers telling them that being infected with
HIV is God’s punishment for them, and that they deserve
getting a sexually transmitted disease, because they sleep
around8. The experiences of stigma, discrimination and
moral judgements, recollected by transgender people in a
recent report of Gender Dynamix are typical of the barriers
that lesbian, gay, bisexual, and transgender people face
when accessing healthcare:
They [health care workers] look at me like I am an
alien and call me istabane [Zulu derogatory term for
gay] and want to know why I am like this.9
I tested [for HIV] and was not of the best as the
person who pricked me urged me to change my life as
being like I am is immoral she said.10
No turning tides
without changing minds…
www.aln.org.za
…health needs and risks of lesbian,
gay, bisexual, transgender people
do not find entry into the
content of the existing
teaching schedules…
27
ALQ March/April 2013
As a result of these experiences, and because they fear
further discrimination, many lesbian, gay, bisexual, and
transgender people do not disclose their sexual orientation
to their healthcare provider. There are a number of instances
where this is detrimental to the healthcare that they
can receive – counselling about the risks of contracting
HIV, as highlighted earlier, is
one example.
Healthcare provision
The 2012-2016 National
Strategic Plan on HIV, TB and
STIs recognises that transgender
people and men who have sex
with men are key populations
for efforts of preventing and
treating HIV. However, it does
little to address the challenge of
continuous heteronormativity
and homophobia in the health
system in general, and in
HIV services in particular. The
new draft policy on sexual
and reproductive health, under
review by the Department of
Health since May 2011, also
recognises the existence and
health needs of lesbian, gay,
bisexual, and transgender
people11. These initiatives have
to be applauded. However,
they will have little impact on the health of lesbian,
gay, bisexual, and transgender people if not followed by
adequate implementation. Healthcare workers, who are the
gatekeepers to accessing the healthcare system, need to be
willing and equipped to provide adequate, non-judgmental
healthcare to people who identify as lesbian, gay, bisexual,
transgender or queer.
…healthcare workers allow their
personal prejudices to define the
treatment that they give a patient
who does not identify accordingly
to their own value system…
Healthcare for lesbian, gay, bisexual and transgender people
…health activists in civil society
need to include queer health issues
in their agendas…
28Healthcare for lesbian, gay, bisexual and transgender people
March/April 2013 ALQ
Currently, healthcare workers – nurses, doctors,
counsellors and community health workers – do not receive
training on sexuality, sexual orientation, or lesbian, gay,
bisexual, and transgender health. The curricula of our
medical schools and nursing colleges do not address the
moral attitudes of our future healthcare providers. Nor do
they teach them how to provide HIV counselling to people
who have sex with partners of the same sex, or transgender
people. The health needs and risks of lesbian, gay,
bisexual, and transgender people do not find entry into
the content of the existing teaching schedules. It is thus
understandable that healthcare workers are ill-equipped to
deal with lesbian, gay, bisexual, and transgender patients.
It is, however, not understandable that healthcare workers
allow their personal prejudices to define the treatment that
they give a patient who does not identify accordingly to
their own value system.
There are a few non-governmental organisations that provide
non-judgmental, queer-affirming healthcare to lesbian, gay,
bisexual, and transgender people12. Some of these organisations
also provide critically important sensitisation training to
healthcare workers. Their work provides a rare safe space for
lesbian, gay, bisexual, and transgender people who, for the most
part, have had horrible experiences in the public health sector.
Ca ll to action…
It is unacceptable that the burden for providing healthcare
to one of the most vulnerable groups is placed on civil
Now more than ever
Human rights should be at the centre
of the response to HIV and AIDS
Because…
Universal access
will never be achieved
without human rights
29
ALQ March/April 2013
society organisations. Training on lesbian, gay, bisexual,
and transgender health, including sensitisation training,
needs to be mandatory for all current and future healthcare
workers. The Department of Health needs to commit to the
declarations made in the NSP, and provide this training to all
its employees (nurses, doctors, counsellors and community
health workers). Medical schools and nursing colleges need
to include lesbian, gay, bisexual, and transgender health into
their curricula, and ensure that all graduates are skilled and
willing to provide healthcare to lesbian, gay, bisexual, and
transgender people.
Health activists in civil society need to include queer
health issues in their agendas. We cannot leave it up to
queer organisations to address the discrimination of lesbian,
gay, bisexual, and transgender people. When reviewing and
evaluating health policies and their implementation, we must
analyse their impact on, and their provision for the health
needs of lesbian, gay, bisexual, and transgender people.
But we must also address discrimination within our own
organisations, and challenge our own prejudices and those of
our colleagues. Only then are we working towards living in a
society in which the constitutional equality framework also
expands to lesbian, gay, bisexual and transgender people.
FOOTNOTES:
1. See Harcourt, J. 2006. ‘Current issues in lesbian, gay, bisexual and
transgender health’. In: Journal of Homosexuality, 51(1), DOI:
10.1300/J082v51n01_01.
2. Lane, T. et al. 2011. ‘High HIV prevalence among men who have
sex with men in Soweto, South Africa: Results from the Soweto
Men’s Study’. In: AIDS Behavior, 15, pp626-634.
3. See Sandfort TGM et al. 2013. ‘Forced Sexual Experiences as Risk
Factor for Self-Reported HIV Infection among Southern African
Lesbian and Bisexual Women’. In: PLoS ONE, 8(1): e53552.
doi:10.1371/journal.pone.0053552.
4. Often reported as so-called ‘corrective rape’ in the media, sexual
violence particularly against black lesbian women has a high
prevalence in South Africa.
5. See Sandfort TGM et al. 2013. ‘Forced Sexual Experiences as Risk
Factor for Self-Reported HIV Infection among Southern African
Lesbian and Bisexual Women’. In: PLoS ONE, 8(1): e53552.
doi:10.1371/journal.pone.0053552.
6. See King, M. et al. 2008. ‘A systemic review of mental disorder,
suicide, and deliberate self-harm in lesbian, gay and bisexual
people’. In: BMC Psychiatry, 2008, 8(70), doi:10.1186/1471-244X-
8-70.
7. Gay and Lesbian Medical Association 2001.
8. Lane, T. et al. 2011. ‘High HIV prevalence among men who have
sex with men in Soweto, South Africa: Results from the Soweto
Men’s Study’. In: AIDS Behavior, 15, pp626-634.
9. Stevens, M. 2012. Transgender access to sexual health services in
South Africa: A key informant report. Cape Town: Gender Dynamix.
10. Ibid.
11. SRHR: Fulfilling our commitments, Department of Health [www.
agenda.org.za/wp-content/uploads/2012/09/SRHR-Fulfilling-our-
Commitments.pdf].
12. Triangle Project in Cape Town, OUT in Pretoria, the Durban
Lesbian and Gay Community & Health Centre, and a few
ANOVA/Health 4 Men clinics.
Healthcare for lesbian, gay, bisexual and transgender people
Alexandra Muller is a postdoctoral research fellow
at the Health and Human Rights Programme,
School of Public Health and Family Medicine,
University of Cape Town. For more information
and/or comments, please contact her on
alexandra.muller@uct.ac.za.
…address discrimination
within our own organisations,
and challenge our own prejudices
and those of our colleagues…
30Towards universal services for sex workers in South Africa
March/April 2013 ALQ
Sally-Jean Shackleton
How the plan was
deve loped
Early in 2012, the Sex Work
Sector started developing a
Sex Work Sector Plan, with
support from the UNFPA.
The process involved a
two-day meeting with
sex workers and
implementers to consult
them on what they thought
should be prioritised. This resulted in a first version of
the Plan drafted by Marion Stevens, for the sector. In the
mean-time, the South African National AIDS Council
(SANAC) Secretariat recognised the importance of
addressing sex work directly and offered support to
the sector.
In August 2012, over 200 experts got together at a
three-day symposium titled ‘National Sex Work Symposium:
Best Practice in HIV Prevention, Care and Treatment for
Sex Workers in South Africa’. The Symposium was supported
by SANAC and UNFPA, and was held in partnership with the
National Department of Health and the Ministry of Women,
Children and People with Disabilities. The programme
of the symposium ensured the active participation of
sex workers themselves as presenters. In the audience
were sex worker peer educators, human rights advocates,
nurses and healthcare practitioners, staff members of
NGOs, researchers and policy makers. The symposium
was addressed by the Deputy Minister of Police, and the
The National Sex Work Programme…
Towards universal services for sex workers in South Africa
The National Sex Work Programme (NSWP) is a potential milestone for improving access to health services
and establishing sex work appropriate healthcare.
Sex workers march in Cape Town to demand better treatment from Police, Cape Town 2012
31
ALQ March/April 2013
Towards universal services for sex workers in South Africa
closing remarks were made by Dr Fareed Abdullah, CEO of
SANAC who said:
I think this meeting is going to go down in history as a
turning point in the work of the sex worker movement.
The Symposium was another venue in which the
Sex Work Plan was presented, and which elicited a number
of inputs. SANAC began bringing together a small group of
people as a technical working group, which began putting
the finishing touches to the Sex Work Plan – which at this
time, evolved into a national programme.
The Plan
Let’s not have another meeting like this where we talk
about what to do. I am tired of talking about many of
these issues; we need to get on and do the work.
[Dr Yogan Pillay, Deputy Director General, NDoH
at the National Symposium August 2012]
The National Sex Work Programme defines sex work
as adult consensual sex in exchange for money or goods,
either regularly or occasionally. It acknowledges that
sex workers are viewed very negatively by society, and
this negative attitude is located in the context of the lower
socio-economic status of women and other minority groups.
This moral judgment, social stigma and discrimination
result in the marginalisation, social exclusion and
disempowerment of sex workers.
…increased vulnerability and
obstacles in the way of accessing
healthcare and justice…
Peer educators from SWEAT demonstrate the use of safer
sex equipment at a taxi rank in Cape Town
…moral judgment, social stigma
and discrimination result
in the marginalisation,
social exclusion and
disempowerment of sex workers…
32Towards universal services for sex workers in South Africa
March/April 2013 ALQ
Sex work takes place in every village, town and city
in South Africa in a variety of settings (at truck stops, in
shebeens, brothels and on the streets) and is criminalised
in South African law. Both buying and selling sex is
criminalised, as well as associated activities and living off
the proceeds of sex work. The criminalisation of sex work,
and contextual factors like poverty, result in increased
vulnerability and obstacles in the way of accessing
healthcare and justice. Sex workers in South Africa live and
work in hostile environments, endure high levels of human
rights abuses, and historically have not enjoyed the benefits
of a responsive, non-discriminatory health system.
These elements contribute to the disproportionately high
risk for HIV infection among sex workers – with prevalence
rates of 60% versus 25% among non-sex working women
(15 to 49 years old).1 Additionally, limited access to
enabling health environments prevent good health outcomes
among sex workers living with HIV.2
…sex workers are not victims
by virtue of being
sex workers…
Sex workers march in Cape Town to demand better treatment from Police, Cape Town 2012
33
ALQ March/April 2013
Towards universal services for sex workers in South Africa
The principles
The National Sex Work Programme is informed by a
number of important principles:
• Sex workers are equal citizens and have families
• Sex workers’ rights and dignity must be respected
• Sex workers are not victims by virtue of being
sex workers
• Sex work is a livelihood option for those who engage
in it
• Sex worker ownership: ‘nothing about us, without us’
is central
• Evidence-informed response is central
• Interventions should not do harm
• Collective sex worker engagement, mobilisation and
empowerment are essential for success
…collective sex worker
engagement, mobilisation
and empowerment
are essential for success…
The National Sex Work Programme is carefully designed so as to ensure that there is a logical thread
running from its inputs to its impact:
Resources
SW
participation
Policy
SW
expertise
Strategic
information
INPUTS
Mobilisation &
engagement
Service
provision
Communication
Capacity
building
Advocacy
Structural
reform
Information
collection
Activities
Sex worker
empowerment
Increased service
access
Reduction of HIVrisk
behaviours
Sensitised &
capacitated service
providers
Enhanced human
rights literacy
Systems
strengthening
Assessments &
evidence
OUTPUTS
Decreased
HIV infections
Improved
outcomes
Decreased
violence
Reduced
stigma
Discourse around
legal reform
OUTCOM ES
Decreased
HIV incidence
in general
population
Improved sex
worker health
Enabling
environment
Decriminalisation
of sex work
Impa ct
34Towards universal services for sex workers in South Africa
March/April 2013 ALQ
The aims of the National Sex Work Programme are to:
Increase coverage and access to • comprehensive HIV,
STI & TB services for sex workers, their partners and
families
• Reduce violence and human rights abuses experienced
by sex workers
• Create enabling health and related systems for the
realisation of constitutional rights
Its objectives are to:
1. Reduce social and structural barriers to HIV, STI
& TB prevention, care and impact
2. Reduce sexual transmission of HIV among
sex workers
3. Sustain sex workers’ health and wellness
4. Strengthen the health system
5. Collect information and research to enable an effective
HIV response
Activities included in the plan are adapted to three
contexts: metropolitan areas, where sex work happens
in high concentrations and within an identifiable
Context3 Service delivery model4 Pac kage of services
Metropolitan area High concentration of sex workers
Specialist sex worker clinics
(NGO-government partnerships)
e.g. Essen St clinic
• extended hours
• established networks
• mobile services
1. Condoms and lubricants
2. Post-exposure prophylaxis (PEP)
3. STI/TB diagnosis and management
4. HIV, testing, treatment, care
and support
5. Psychosocial services and
risk reduction
6. Referral for substance abuse
7. Reproductive and sexual health
8. IEC materials
9. Safe spaces and peer-led mobilisation
Sex worker ‘hot spots’ Sex-worker focused services
(NGO or government provided)
e.g., truck stops
• Includes sex worker clients
• Includes mobile services
1. Services described above (1 to 9)
2. Services for sex worker partners
(1 to 5, 9)
3. Mobile services (1 to 4, 9)
Other areas HTA clinics
Sex-worker friendly services
(NGO or government provided)
Outreach work and primary healthcare
package, provided in a sensitised manner
35
ALQ March/April 2013
Towards universal services for sex workers in South Africa
Sally-Jean Shackleton is the Director at SWEAT.
For more information and/or to get involved,
please contact her on sallys@sweat.org.za.
geographical area; sex worker ‘hot-spots’, where
sex workers are concentrated around a truck stop for
instance; and other areas, where sex work happens in
smaller numbers.
Central to the delivery of services is peer education
programmes where peers are current or former sex
workers, and where sex workers are central to the planning,
implementation and evaluation of services.
Next steps
The National Sex Work Plan needs the support of all
SANAC Sectors. It needs to be approved by Plenary and
thereafter costed. It is crucial that funding is allocated to
its implementation.
FOOTNOTES:
1. Baral, S. et. al. 2012. ‘Burden of HIV among female sex workers
in low-income and middle-income countries: a systematic review
and meta-analysis’. In: Lancet, 12(7), pp538-549.
2. SACEMA. 2010. Modes of Transmission Study. Report.
Stellenbosch.
3. Context assessed through location mapping and needs assessment,
defined by sex worker concentration.
4. Peer led outreach, education, linkage to services and support
provided in all contexts.
…interventions should not
do harm…
Dudu Dlamini, Sisonke Organiser,
addressing sex workers with a poem
…collect information
and research to enable
an effective HIV response…
36In the best interest of children…?
March/April 2013 ALQ
Pierre De Vos
Is it in the best interest of children to turn up
to 80% of them into potential criminals? Is it
constitutionally acceptable for teachers, principals
and parents to abdicate their responsibility
to educate children about sexual matters by
potentially criminalising all forms of kissing,
cuddling, touching and other forms of sexual
exploration between children, despite the fact that
such behaviour are ordinarily associated with the
normal physical and emotional development of
children? Thankfully, Judge Pierre Rabie of the
North Gauteng High Court in January 2013 ruled
that it would not. Predictably, the sexual perverts
and prudes who see sex as something dirty,
disgusting and corrupting are up in arms. This is
why they are wrong.
The High Court was asked, among others, to consider
the constitutional validity of Section 15 and 16 of the
Sexual Offences Act. These sections prohibit 12 to 15 year
old adolescents from engaging in voluntary and consensual
conduct with one another that would include anything from
kissing, holding hands and light petting, to oral sex and other
forms of sexual intimacy, including sexual intercourse, if
there is more than a two year age gap between them. If a child
of 15 kisses a child of 13 both commit an offence. However,
if a child of 17 kisses a child of 15 only the 17 year old can
be prosecuted. The Act, therefore, provides an incentive for
children younger than 16 to engage in sexual activities with
people older than 16.
In the best interest of children…?
Why the criminalisation of consensual sexual exploration
between teenagers is unconstitutional…1
Stigma + social norms
= HIV risk
not ‘wrong’ choices
Who have you
discriminated against lately?
The AIDS Legal Network is a human rights organisation committed to the promotion, protection and realisation of
fundamental rights and freedoms of people living with – and affected by – HIV and AIDS
Published by the AIDS
www.aln.org.za
37
ALQ March/April 2013
The Act also states that when a child deceives an
accused into believing that he or she is already 16, then
the older child or adult will not be guilty of an offence.
This means that when a girl pretends to be 16 (but is, in
fact, 15) and has sex with a 16 year old boy (or kisses that
boy), neither of them could be prosecuted. However, if the
same 15 year old girl has sex with (or kisses) a 15 year old
boy, both could be prosecuted because the exception does
not apply to children younger than 16.
The Act further places a legal duty on any person
who has knowledge that any of these sexual offences
have been committed against a child must report such
knowledge immediately to a police official and failure to
do so constitutes an offence for which the person is liable
on conviction to a fine or to imprisonment for a period not
exceeding five years. This means that where a 15 year old
boy informs his mother that he has kissed a 17 year old
girl, his mother will potentially become a criminal if she
does not report her child to the police.
The Act bestows a discretion on the National
Prosecuting Authority (NPA) to decide on whether to
prosecute the children, but requires the NPA to prosecute
both parties involved in the sexual activity if they are
both younger than 16, regardless the circumstances.
However, the Act does not provide any guidelines for
how this discretion should be exercised, meaning that the
enforcement of these criminal prohibitions will necessarily
be selective and arbitrary.
According to statistics submitted to court between
39% and 80% of adolescents surveyed in Cape Town and
Polokwane had engaged in kissing; between 25.8% and
33.8% had engaged in heavy petting; and between 15%
and 26.8% had engaged in vaginal sex. The reality is that
most adolescents experiment with their sexuality and this
is recognised by our law.
Thus, in order to protect adolescents against
HIV infection and pregnancy, Section 134 of the Children’s
Act prohibits any person from selling condoms to a child
over the age of 12 and requires the provision of condoms
In the best interest of children…?
…it reinforces the social stigmas
and taboos around sexuality…
…this will discourage adolescents
from seeking help with respect
to their sexuality…
38In the best interest of children…?
March/April 2013 ALQ
…behaviour that is mutually consensual, wanted,
desired, non-violent, safe (in terms of using methods
to minimise risks of STI transmission and pregnancy),
and for which the individual feels emotionally and
physically ready.
Different children will obviously be ready for
different forms of sexual exploration at different stages
of their lives. The best possible way to help children
deal with their sexual development in a healthy manner
is to ensure that they seek out advice and help from
appropriate individuals.
If one criminalises consensual sexual acts, this will
discourage adolescents from seeking help with respect
to their sexuality, because they may then be prosecuted
for such behaviour, and because it reinforces the social
stigmas and taboos around sexuality. Because the Act
silences and isolates adolescents regarding their sexual
exploration, it makes unhealthy behaviour and poor
developmental outcomes more likely and does not advance
to all children over the age of 12 on request where such
condoms are provided or distributed free of charge.
Contraceptives, other than condoms, may be provided to
a child on request by the child and without the consent of
the parent or caregiver of the child if the child is at least
12 years of age. The Choice on Termination of Pregnancy
Act further provides that ‘no consent other than that of the
pregnant woman shall be required for the termination of
a pregnancy’, meaning that any 13 year old is entitled to
terminate her pregnancy without knowledge or consent of
her parents or caregivers.
The expert evidence submitted to the court
indicated that
…given their developmental stage and their
developmental tasks, it is not unusual or necessarily
unhealthy and harmful for adolescents to engage
in sexual behaviours as they begin to learn about
their sexuality and become more mature in several
life domains.
Experts defined ‘healthy’ sexual behaviour as
…it may discourage rape survivors
from reporting the rape…
…the problem with these
provisions is that it treats children
not as individual social beings…
39
ALQ March/April 2013
In the best interest of children…?
teaching them that consensual, developmentally
normative sexual behaviour is wrong and deserves to
be punished
There is an even bigger problem with the impugned
provisions: it may discourage rape survivors from reporting
the rape. Because it would be far easier for the NPA to
the best interests of children as required by Section 28(2)
of the Constitution. As the court pointed out:
This would also increase the likelihood that
adolescents will engage in risky behaviour by making
it impossible for caregivers to provide advice,
counselling and support on issues regarding the
child’s sexuality. Such caregivers would obviously
also, from their side, be reluctant to enquire too
much and would thus be inhibited in their actions,
and actually be prevented from performing their
duties as they are supposed to do. The existence of
the offences also increases the risk that children
will experience unhealthy sexual contact, by
Now more than ever
Human rights should be at the centre
of the response to HIV and AIDS
Because…
AIDS poses unique challenges
and requires exceptional responses
…the risk of turning many children
into criminals for no other reason
than that they explored healthy
sexual behaviour…
40In the best interest of children…?
March/April 2013 ALQ
Individually and collectively all children have the
right to express themselves as independent social
beings, to have their own laughter as well as sorrow,
to play, imagine and explore in their own way, to
themselves get to understand their bodies, minds and
emotions, and above all to learn as they grow how
they should conduct themselves and make choices in
the wide social and moral world of adulthood.
As with all High Court orders declaring invalid
legislative provisions, the order of invalidity will not come
into effect until it is confirmed by the Constitutional Court.
For the time being, it thus remains a criminal offence for
a 15 year old to kiss or hold hands with a 13 year old,
which might come as a relief to some parents who believe
the criminal law should do their parenting for them, but is
not in the best interests of children exploring their sexual
awakening in a normal and healthy manner.
FOOTNOTES:
1. An earlier version of this article has been published on 17 January
2013 on the Constitutionally Speaking blog.
[http://constitutionallyspeaking.co.za]
prove consensual sex occurred between the minor and an
adult, than it would be to prove that rape occurred; hence,
there is a danger that the NPA will tend towards pursuing
a charge of consensual sex. Where the alleged rapist is
under 16 years old, the victim of the possible rape must
her/himself also be charged with contravening Section 15.
It would then be for her to prove that the sex was nonconsensual,
and thus, avoid conviction under Section 15.
Failing this, she would be convicted.
The problem with these provisions is that it treats
children not as individual social beings. Instead, in an
attempt to impose a narrow, moralistic view of sexuality
not in line with the lived experience of children, it runs the
risk of turning many children into criminals for no other
reason than that they explored healthy sexual behaviour
as part of their normal development as human beings.
To emphasise this point, the High Court quotes from the
Constitutional Court judgment in S v M (Centre for Child
Law as Amicus Curiae) where the purpose of the children’s
rights guaranteed in Section 28 of the Constitution is
described as follows:
…a relief to some parents who
believe the criminal law should do
their parenting for them…
Pierre de Vos is a constitutional law professor at the
Department of Public Law at the
University of Cape Town.
For more information and/or comments,
please contact him at Pierre.DeVos@uct.ac.za.
41
ALQ March/April 2013
Sex education in schools
Given to anyone who fits in on the time table…
Sex education in schools
Precious Acker
There is a high risk
factor of HIV infection
for the age group
of 10 to 19 years old
in South Africa. The
HIV prevalence in this age group increased from
21% in 2007 to 23% in 20101. As HIV continued to
increase for the youth population in South Africa,
Life Orientation was introduced as a compulsory
subject in South African schools starting in 2002.
In an effort to make a difference and adequately address the
high risk of HIV exposure and transmission to the youth of
South Africa, the Department of Education seeks to provide
opportunities to the youth by implementing sex education
programmes within the curriculum to educate school children
with the knowledge and skills they need to make informed and
healthy choices, including, but not limited to, HIV prevention and
information about the disease. The Life Orientation programme
has become one of the educational responses to the HIV pandemic
in South Africa, and is viewed as effective for addressing the
HIV pandemic and reducing other health outcomes for learners2.
The aim of this article is to examine what is ‘proper’ sex
education in South Africa and how is the message interpreted in
the classroom.
What is sex education?
In South Africa, sex education is a required subject for
learners in conjunction with Life Orientation courses. Life
Orientation is a required course starting in grade R through
to grade 12. In the Revised National Curriculum Statement
Grades R-9, the Department of Education describes that Life
Orientation learning area
…guides and prepares learners for life and its possibilities,
specifically for meaningful and successful living in a rapidly
changing and transforming society.3
Life Orientation is central to the holistic development
of learners. It addresses skills, knowledge and values for
the personal, social, intellectual, emotional and physical
growth of learners, and is concerned with the ways in
We need to move
beyond commitments…
www.aln.org.za
42Sex education in schools
March/April 2013 ALQ
which these facets are interrelated. Life Orientation covers
five learning areas4:
• Health promotion
• Social development
• Personal development
• Physical development and movement
• Orientation to the world of work
Life Orientation is divided into four phases: foundation phase
(Grade R-3), intermediate phase (Grade 4-6), senior phase (Grade
7-9) and general phase (Grade 10-12). For example, children in
Grade R-3 are expected to explain the right to say ‘no’ to sexual
abuse, and describe ways in which to do so, and understand basic
personal hygiene. Older children in Grades 4-6 need to know how
to explain causes of communicable diseases (including HIV) and
available cures, and evaluate prevention strategies, in relation to
community norms and values, as well as identify different forms
of abuse and suggest strategies to deal with them. The senior
phase, grades 7-9, introduces learners to personal decision-making
skills. Students should know how to describe strategies for living
with diseases, including HIV, and also describe a healthy lifestyle
in their own personal situation, as a way to prevent disease.
Grade 10-12 students are equipped to explain changes associated
with growing towards adulthood, and describe values and
strategies to make responsible
decisions regarding sexuality
and lifestyle choices in
order to optimise personal
potential. Students should
also know how to investigate
the extent to which unequal power relations between the sexes
are constructed, and how they influence overall health and
well-being, and apply this understanding to work, cultural
and social contexts. The programme is designed to enable
students to be informed, responsible and participating citizens
by providing access to a holistic curriculum that addresses
educational and societal fundamentals.
Life Orientation is a fact-based curriculum with an outcomebased
education focus5. The outcome-based focus encompasses
a learner-centred and activity-based approach, which allows
students to have a more active learning experience by encouraging
students to have discussions, critically evaluate and problem
solve, and develop community building through group projects.
Outcome-based focus curriculum is an important aspect of the
Life Orientation learning areas, as it aims to effectively transmit
knowledge to all learning types.
…responsible decisions regarding
sexuality and lifestyle choices
in order to optimise
personal potential…
I have the right to protect myself…
and be safe…
www.aln.org.za
43
ALQ March/April 2013
Sex education in schools Is eve ryone required to receive sex education?
The right to education is a fundamental human right and
enshrined in South African law. Section 29 of the Constitution
guarantees that everyone has the right to education, basic education
and further education; that no citizen should be discriminated
against in relation to race, age, socio-economic status, or language;
and that education should be accessible and available for all.6
(1) Everyone has the right
(a) To a basic education, including adult basic
education; and
(b) To further education, which the state, through
reasonable measures, must make progressively
available and accessible.
(2) Everyone has the right to receive education in
the official language or languages of their choice in
public educational institutions where that education
is reasonably practicable. In order to ensure the
effective access to, and implementation of, this right,
the state must consider all reasonable educational
alternatives, including single medium institutions, taking
into account:
(a) Equity;
(b) Practicability; and
(c) The need to redress the results of past racially
discriminatory laws and practices.
(3) Everyone has the right to establish and maintain,
at their own expense, independent educational
institutions that
(a) Do not discriminate on the basis of race;
(b) Are registered with the state; and
(c) Maintain standards that are not inferior to standards
at comparable public educational institutions.
(4) Subsection (3) does not preclude state subsidies for
independent educational institutions.
South Africa attempts to strengthen the right to education by
implementing compulsory attendance for all children. The South
African Schools Act Chapter 2 Section 3 states that learners are
required to attend school for eight years, from the age of seven until
fifteen or Grades 1 through to 9, whichever comes first7. However,
Chapter 2 Section 4 also states that ‘a Head of Department may
exempt a learner from compulsory attendance’ demonstrating that
there are exceptions for not attending compulsory school. The
South African Schools Act further outlines that ‘school fees may
be determined and charged a fee at public school’, although no
learner may be refused admission to a public school, reiterating the
non-discriminatory practice of socio-economic status. Although
…no specific law requiring
sex education to be compulsory…
…designed to enable students to
be informed, responsible and
participating citizens…
44Sex education in schools
March/April 2013 ALQ
the South African Schools Acts aims to promote inclusivity and
access to education to all students, the Act contradicts itself with
the implementation of fees in public schools, and the option for
some to be exempt from compulsory attendance illustrating
exclusivity in practice.
Neither the Bill of Rights nor the South African Schools
Act has clauses recognising compulsory sex education (or Life
Orientation) as a requirement for all students. Although sex
education is defined in The National Curriculum Statement, there
is no specific law requiring sex education to be compulsory.
Those in opposition of the Life Orientation course have
concerns of the legality of this course and non-parental consent.
Although the South African Schools Act does not have a clause
that addresses parents’ role with regards to sex and sex education,
it is their human right to freedom of conscience, religion, thought,
and belief to raise their concerns. This right is also strengthened in
the South African Schools Acts that states in Chapter 2 Section 7:
Subject to the Constitution and any applicable provincial
law, religious observances may be conducted at a public
school under rules issued by the governing body if such
observances are conducted on an equitable basis and
attendance at them by learners and members of staff is free
and voluntary.8
Parents, who because of religious concerns, object to the Life
Orientation course seem to challenge not only the legality of the
subject being compulsory, but also the manner in which the subject
is presented. In any challenge brought forward as to whether or
not sex education should be part of the school curriculum, parents
would have to demonstrate how this subject violates their freedom
to religious beliefs. Parents’ right to challenge the ‘required’ Life
Orientation (including sex education) course seems to also
pose the ultimate question of whether or not, and to what
extent, parents have the right to challenge (and change) the
curriculum in public schools.
How is sex education implemented?
Sex Education is introduced through the Life Orientation
learning area courses. The implementation of this course is
divided into three phases: subject framework, work schedule, and
lesson plans. It is recommended that the teachers of a subject at a
school, or cluster of schools, first put together a broad subject
outline; secondly teachers of the same grade must develop a
work schedule to draw from the content and context identified
for their grade in the Subject Framework; and lastly teachers
should design a lesson plan using the grade-specific work
schedule as the starting point.9
…to effectively ensure that learners
apply their knowledge gained…
…the quality of sex education is
heavily dependent on teachers…
45
ALQ March/April 2013
Sex education in schools
This plan is contingent upon the success of the teacher’s
work schedule, which indicates the sequence in which the content
and context will be presented for the subject in that particular
grade. The work schedules are documents that outline the course
content, assessments, and importantly, teaching for the 32-36
week span. It is important to fulfil the work schedules in order to
effectively ensure that learners apply their knowledge gained. It
is teachers’ goal to promote
team work and hold each other
accountable for upholding the
general standards.10
What is the quality of
sex education?
The quality of sex
education is heavily dependent
on teachers. The level of
quality is dependent on the
teacher’s training, teacher’s
implementation of the
curriculum, and teacher’s
assessment of the learners.
Life Orientation teachers are trained by departmental
in-service workshop training sessions, or sessions at Higher
Education Institutions offered by the Department of Education11
through Further Education and
Training (FET). Although the
National Curriculum Statement
visualises Life Orientation teachers
who are qualified, competent,
dedicated and caring, they must
also fulfil the Norms and Standards
for Educators’ seven roles
requirement. One of the seven role
requirements is that all educators:
Will be well-grounded in the
knowledge, skills, values,
principles, methods, and
procedures relevant to the
discipline, subject, learning
area, phase of study, or professional or occupational
practice. The educator will know about different approaches
to teaching and learning (and, where appropriate, research
and management), and how these may be used in ways,
which are appropriate to the learners and the context. The
educator will have a well-developed understanding of the
knowledge appropriate to the specialism.12
…referring to schools’ actions
towards the course as less
important and less organised…
Who have you
discriminated against lately?
“Rights
are not
free”
They have responsibilities
While you have the right to be treated the same as everyone else –
You also have the duty to treat the next person equally
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fundamental rights and freedoms of people living with – and affected by – HIV and AIDS
Published by the AIDS
www.aln.org.za
…teachers do not possess the skills
to effectively implement the
full programme…
46Sex education in schools
March/April 2013 ALQ
The National Curriculum does not explicitly state what the
teacher requirements are with regards to specialisation, neither
what presents the success of the training, nor if a completed
certificate of the training is required to teach.
Research argues that teachers are not qualified to teach Life
Orientation courses, because of the lack of specialisation, and
questions whether or not teachers are equipped to teach these
courses effectively. Research examining the implementation of
Life Orientation in schools in the Western Cape showed evidence
of a shortage of Life Orientation teachers and a large percentage
of unqualified teachers, which ultimately had implications for the
growth and development of learners. One of the Life Orientation
teachers commented that ‘a full syllabus does not allow the
incumbent teacher sufficient time to do physical training’13,
arguing that the National Curriculum Guidelines are not enough in
practice. She continues commenting that ‘unqualified persons
find it difficult to implement a programme for assessment14,
and that less focus is given to Life Orientation as a separate
subject, because Life Orientation ‘is given to anyone who fits
in on the timetable’15.
The teacher comments express concerns for the lack of
attention schools give to the Life Orientation course, referring
to schools’ actions towards the course as less important and
less organised. This also illustrates that teachers do not possess
the skills to effectively implement the full programme. Earlier
research suggests that Life Orientation should be intensively
skilled-based to provide interactive teaching to carry out the
programme.16 Because the teacher’s skills impacts on the
outcome of the programme and its success, teachers should
be adequately trained.
The teacher’s role in the implementation of Life Orientation
and sex education is critical in understanding the practicality of the
subject. The National Curriculum Statement Learning Programme
Guidelines argues that
…the key to successful teaching in Life Orientation relies
heavily on the teaching approach chosen by the teacher.17
Although teachers collectively decide on a work schedule and
lesson plan guidelines, individual teachers are given autonomy
in the actual practice of the course. The guideline continues by
stating that
…the choice of assessment strategies is a subjective one,
unique to each teacher, grade and school and depends on
the teacher’s professional judgment.18
The direction of the programme success being based on
the teacher’s professional judgment is, however, based on the
assumption that every teacher implements the full programme;
that every teacher is fully committed; and that every teacher
approaches and presents the curriculum unbiased. In light of this
large amount of autonomy to what extent can teachers be held
…teacher’s generic disposition
affects the outcomes of
teachers’ individual implementation
of sex education…
47
ALQ March/April 2013
Sex education in schools
accountable for barriers to the successful implementation of the
programme? Research argues that a teacher’s generic disposition
affects the outcomes of teachers’ individual implementation of
sex education, which suggests that ‘self-selection or screening
procedures should include the dimension of student-centeredness,
responsibility, and controllability’.19
Ultimately, the quality of sex education relies on teachers’
efforts. Whether it is a measurement of teacher training
effectiveness, or teachers’ accountability in relation to autonomy,
teachers have the responsibility (and pressure) of implementing a
successful sex education programme.
Conclusion
With the teachers given considerable amount of responsibility
and autonomy in respect of implementation of the Life
Orientation programme, in practice, approach and pedagogy
vary considerably20, illustrating a lack of universality in the
course presentation and in the targeted outcomes the course
should achieve. The question of effectiveness realises in the
quality a particular teacher put forth in the course, which also is
not universally defined. Because the National Curriculum does
not define exactly what skills a Life Orientation teacher should
possess, individual assumptions will continue to be the leading
indicator of who is a successful teacher.
In reality, the quality of sex education will continue to vary
based on the individual teacher presenting the course, until such
time that Life Orientation and sex education at schools are given
the required attention to ensure quality and proper sex education
for learners.
FOOTNOTES:
1. See The South African Department of Health Study, 2010. [www.
avert.org]
2. Francis, DA. 2011. ‘Sexuality Education in South Africa: Wedged
within a triad of contradictory values’. In: Journal of Psychology in
Africa, 21.2, pp317-22.
3. Department of Education. May 2000. Revised National Curriculum
Statement Grades R-9 (Schools) Life Orientation.
[www.education.gov.za]
4. Ibid.
5. Ibid.
6. Section 29 of the Constitution of the Republic of South Africa,
Act 108 of 1996.
7. South African Schools Act (No 84 of 1996), Chapter 2, Section 3.
8. Ibid, Chapter 2, Section 7.
9. Department of Education. January 2008. National Curriculum
Statement Learning Programme Guidelines.
10. Ibid.
11. Van Deventer, K. 2009. ‘Perspectives of Teachers on the
Implementation of Life Orientation in Grades R-11 from Selected
Western Cape Schools’. In: South African Journal of Education,
29.1, pp127-45.
12. See Explanatory Notes to the Norms and Standards for Educators
[www.education.gov.za/LinkClick.aspx?fileticket=RrtReIvj7AY%3
D&tabid=335&mid=971].
13. Van Deventer, pp139-140.
14. Van Deventer, p140.
15. Ibid.
16. Shamagonam, J. et al. 2006. ‘The Impact of an HIV and AIDS Life
Skills Program on Secondary School Students in KwaZulu-Natal,
South Africa’ in: AIDS Education and Prevention, 18.4, p281-94.
17. National Curriculum Statement Learning Programme Guidelines.
18. Ibid.
19. Mathews, CH. Et al. 2006. ‘Factors Associated with Teachers’
Implementation of HIV/AIDS Education in Secondary Schools in
Cape Town, South Africa’. In: AIDS Care, 18.4, pp388-97.
20. Francis, p317.
…a lack of universality in the
course presentation and in the
targeted outcomes the course
should achieve…
Precious Acker is an intern at the AIDS Legal Network
(ALN). For more information and/or comments,
please contact her at pbacker89@gmail.com.
48A human rights approach…
March/April 2013 ALQ
Supported by the Oxfam HIV and AIDS Programme
(South Africa)
www.aln.org.za
Editor & Photographer: Johanna Kehler (jkaln@mweb.co.za) • DTP Design: Melissa Smith (melissas1@telkomsa.net) • Printing: FA Print
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