As seductive as certain perspectives of international law may appear to those who disagree with the outcome of the interpretative exercise conducted by this Court in the contempt judgment, sight must not be lost of the proper place of international law, especially in respect of an application for rescission. The approach that my Brother adopts may be apposite in the context of an appeal, where a court is enjoined to consider whether the court a quo erred in its interpretation of the law. Although it should be clear by now, I shall repeat it once more: this is not an appeal, for this Court’s orders are not appealable. I am deeply concerned that seeking to rely on articles of the ICCPR as a basis for rescission constitutes nothing more than sophistry.
Over the past few weeks at least seven gay men and lesbians have been brutally murdered in South Africa in what appears to have been homophobic hate crimes. But this statistic does not begin to capture the magnitude of the hate and violence faced by some LGBTQ people in South Africa. This homophobic and transphobic hate (if not always the violence that flows from it) is often justified on religious grounds. But (real or purported) religious beliefs can never justify homophobia and transphobia. It is time for religious leaders and all believers to reject the use of religion to justify homophobic and transphobic bigotry.
We do not know how many LGBTQ people are violently attacked or murdered in South Africa each year in homophobic or transphobic hate crimes. The South African Police Service (SAPS) does not keep statistics on hate crimes, and even if it did, many homophobic and transphobic hate crimes would not be classified as such because of the reluctance of the authorities to acknowledge the homophobic and transphobic motivation behind many of these attacks. (Similarly, authorities seem to be reluctant to acknowledge that attacks on many foreigners are fuelled by xenophobia.)
We do know that several LGBTQ individuals have been brutally murdered over the past few weeks because some news outlets have reported on (at least some) of these murders. The victims include Bonang Gaele, Nonhlanhla Kunene, Sphamandla Khoza, Nathaniel ‘SpokGoane” Mbele, Andile “Lulu” Nthuthela, Lonwabo Jack, Buhle Phoswa and Lucky Kleinboy Motshabi. These murders sparked nationwide protests from (some) members of the queer South African community, who are demanding justice for those murdered because of their queer identity.
There is a real and justifiable fear that not all these murders will be properly investigated, and that the some of the perpetrators will never be prosecuted and convicted. Less than 20% of the estimated 21 000 cases of murder committed in the country annually end up in court, due to poor investigations and botch-ups by prosecutors. Additionally, homophobia and transphobia within the ranks of the SAPS, and police indifference towards the lives of black South Africans who are not wealthy or famous, make it even less likely that all these cases (and all the cases that may not have been reported) will be tackled with the necessary urgency.
But even if the perpetrators of the reported murders are all brought to book, the assault and murder of LGBTQ individuals are likely to continue, because in South Africa our lives do not matter, or matter less because of our sexuality or gender identity. (Of course, how little or how much our lives do matter depends to some extent on our race, class, and gender identity, with middle class, cisgender, white men far less likely to be the victims of violent attacks, protected as we are by our social and economic status and privilege.)
One of the most powerful sources of homophobic and transphobic hatred in our society remains the homophobia and transphobia endorsed and promoted by religious groups in the name of their religion. In extreme cases, religious leaders wilfully encourage hatred and physical attacks on members of the LGBTQ community. A notorious example is that of “pastor” Oscar Bougardt, who cheered on the news that members of the Islamic State (ISIS) in Syria had executed nine men and a boy for homosexuality. Bougardt commented online that, “we need ISIS to come to countries that are homosexual friendly. ISIS please come rid South Africa of the homosexual curse.” This was in breach of a previous court order and Bougardt was subsequently found to be in contempt of court, the High Court ruling that his supposed religious beliefs did not justify his contempt of court.
But in most cases, homophobic and transphobic religious institutions do not wilfully encourage physical attacks on LGBTQ people. Instead, most of these religious groups provide a religious justification for the homophobia and transphobia of their members, by arguing that the duty to discriminate against LGBTQ people is an ethical imperative flowing from their faith. When some of their followers then invoke these religious teachings to justify verbal or physical attacks on LGBTQ people, the religious institutions quickly wash their hands of responsibility, much like Pontius Pilate allegedly did. (How one could ever respect or follow a faith premised on the hatred of others and on the belief that one’s God requires one to discriminate against others based on who they love, is not immediately clear to me.)
There are, of course, religious groups who have rejected the homophobic and transphobic aspects of their faith, but the teachings of the religious homophobes and transphobes continue to provide cover for those who wish us harm. Much like the teachings of Dutch Reformed Church before 1990 – which claimed that apartheid was biblically justified – provided “religious cover” for white Afrikaners who subjected black South Africans to the most extreme kinds of indignities and violence, religious teachings on sexuality and gender now provide religious cover for the indignities visited on LGBTQ people.
When confronted by the corrosive impact of these religious teachings and the harm caused by them, religious leaders and followers tend to argue that because these homophobic and transphobic views are religiously inspired, and because religion is a personal choice protected by the right to freedom of religion, this must mean that their hateful and immoral views cannot be criticised. To criticise these views, so they say, is to attack their faith and thus infringes on their right to religious freedom.
This is of course self-serving nonsense. The right to freedom of religion does not include a right not to have your religious views criticised or even mocked, just as your right to freedom of conscience does not include a right not to have your atheism criticised or mocked. But the argument is also dangerous to the extent that it allows individuals to escape censure for their outrageous and harmful views, merely because these are couched in religious terms.
Moreover, it is not as if the argument has not been widely rejected when applied to religiously inspired racism. In 2018 in Isimangaliso Wetland Park and Another v Sodwana Bay Guest Lodge and Another the KwaZulu-Natal High Court confirmed that Andre Slade, the owner of Sodwana Bay Guest House, unfairly discriminated against black people by banning black people from making use of the guest house. Mr Slade justified this racist policy by invoking his purported religious beliefs, arguing that the Bible “required racial discrimination”, because according to the Bible black people are “classified as animals” and are therefore “not people”.
Not many South Africans will publicly defend Mr Slade on the ground that his racist views are grounded in his religious beliefs and that we are obliged to give such religious beliefs a free pass in order to respect his right to freedom of religion. (What might happen in private is, of course, another matter.) The obviously reason for this is that most South Africans will agree (at least in public) that racism is despicable and that the racist religious beliefs used by Mr Slade to justify his racist views are also despicable.
The fact that many South Africans will not similarly agree that homophobia and transphobia are despicable, perhaps says less about their religious views and more about how committed they are to hold on to their homophobic and transphobic views. Individuals who accept that religiously inspired racial prejudices are unacceptable, accept that religion is not infallible and that some religiously inspired views are immoral and harmful. The fact that they cannot accept that religiously inspired homophobia or transphobia are immoral and harmful, constitutes a catastrophic moral failure on their part.
None of the ministers of the Dutch Reformed Church who decided that apartheid was biblically justified, shot and killed protestors at Sharpeville, or tortured Steve Biko to death. But they did provide apartheid oppressors with a religious justification for their crimes. Similarly, as far as we know, none of the religious leaders who endorse and promote homophobia and transphobia were involved in the murders of Bonang Gaele, Nonhlanhla Kunene, Sphamandla Khoza, Nathaniel “SpokGoane” Mbele, Andile “Lulu” Nthuthela, Lonwabo Jack, Buhle Phoswa and Lucky Kleinboy Motshabi. Yet, in sometimes subtle and not so subtle ways, their teachings provide a religious fig leaf for the discrimination, abuse and murder faced by members of the LGBTQ community.
Religious leaders and their followers who condemn LGBTQ people as immoral or sinful on religious grounds probably believe that they are putting LGBTQ people in the dock and exposing our “immorality”. Instead, they are putting their religion in the dock by exposing its immorality. It is time for such religious leaders and their followers to save their religion from the taint of immorality by rejecting the use of religion to justify homophobic and transphobic bigotry.BACK TO TOP