Siya Khumalo asks if the resurgence of hate crimes calls for a more equitable and consistent reading of the Bill of Rights into legislation like Employment Equity and Skills Development.
Should legislation like Broad-Based Black Economic Empowerment (B-BBEE) be amended by the Department of Trade, Industry and Competition (DTIC), alongside other stakeholders (e.g. the Department of Employment and Labour), to address past and ongoing socioeconomic challenges faced by people who aren’t heterosexual and/or cis-gendered?
1. The theory of intersectionality
Professor Kimberlé Williams Crenshaw’s theory on the intersectionality of oppressions informs South African legislation. Yet somehow, the B-BBEE Act, which addresses the economic marginalisation of black people, women, youth and people in rural areas, overlooks challenges faced by LGBTI people. Why isn’t the Constitution’s non-discrimination clause promoted where the economic stakes are the highest?
The Employment Equity Act, for example, doesn’t explicitly require a workplace EE Committee to measure how LGBTI visibility is promoted in the workplace beyond discussing and observing the non-discrimination clause. A legal negative ("thou shalt not discriminate") doesn’t incentivise positive inclusivity, and the Constitution is meant to be promoted, not just protected.
Why, then, is there no incentive for LGBTI champions, gender or sexuality sensitisation, LGBTI desks, forums or outreach programmes? People can self-disclose on disability; why not on being LGBTI?
"What if they lie?" someone would ask. Well, companies front but we don’t throw BEE out with the bathwater.
But neither the Skills Development Act nor the Socio-Economic, Management Control, Ownership or Enterprise and Supplier Development elements of the B-BBEE scorecard offer bonus points for LGBTI-specific interventions. Which would be fine, if this specificity didn’t exist for so many other economically marginalised groups. There aren’t enough options for LGBTI-specific shelters, and university residences (or interventions at those that exist), but giving queer people the resources to navigate around society’s oppressive structures frees everyone.
2. Gender-based violence (GBV) arises from binary thinking
Gender-based violence is amplified by the widespread belief that there are only two genders and only one way of sexually matching those. This fuels the pattern in which respectability is a reward of "scoring" an idealised partner of the opposite sex. This deprioritises authenticity, consent, connection and contribution, displacing them with conformity to what’s idealised.
Put differently, it’s easier to earn respect by showing up at a workplace event with a "desirable" partner than to demonstrate, consistently over time, a meaningful connection with a partner whose gender may initially raise eyebrows. The risk of authenticity is so high that society prefers conformity, and shores that up through dominance.
Because no one truly fits into "the man box", a lot of men force women to view them "as real men" nby raping, beating and otherwise frightening them into pretending that they are what society expects of men. These men are insecure. Why not challenge the structural assumption beneath the insecurity?
BEE weirdly, imperfectly but definitely recognises the Coloured and Indian people it’s collapsed into Black, but it doesn’t show that we’ve collapsed the one complex, broad gender and sexuality spectrum into just two genders and one sexuality. Language is trickier still because talking of an LGBTI community implies every single member is lesbian and gay and bisexual.
The point is that alleviating gender-based violence within a heteronormative paradigm is like editing a document on your computer by tippexing on the screen.
3. More conscious targeting of funding
LGBTI people are disproportionately represented among the homeless, those vulnerable to mental health challenges aggravated by social hostility, the unemployed and school drop-outs. These challenges get resolved and addressed when religious institutions challenge biases, or when workplaces follow through on being diverse and inclusive.
There are organisations that facilitate this transformation, but they can get funding if contributors are rendered more competitive for targeting their B-BBEE spends towards the most effective among such organisations.
This doesn’t penalise those that don’t contribute; it advantages those that do through bonus points. There may be no need for organisations to spend more for B-BBEE compliance, only to spend more consciously.
As more people come out as gender non-conforming, it normalises honesty. A society that has clearer line-of-sight on where people truly are in their lives can be more responsive to their needs; such a society is the foundation of a responsive, caring government.
5. Possible Objections
5.1. What if this worsens the backlash and hostility?
The fact that people can be hostile towards reasonable laws is why taxes are collected to enforce the law. Prioritising LGBTI people in legislation improves LGBTI people’s situations (even if it temporarily heightens the risk against them) instead of asking them to live lives of quiet desperation in exchange for promises to protect them after something bad has happened.
Unless visibility is incentivised, no responder will internalise the mindset needed to fully address a bad thing once it’s happened. On the contrary, police and hospitals will retraumatize the vulnerable. Therefore, the risk of backlash is one that ought to be embraced if the possible reward is a set of policy instruments that makes that backlash manageable.
5.2 Capitalism can’t address the legacy that produced it
While there may be a tendency for some organisations to highlight the plight of "lesbians in townships", only to turn around and hog the resulting benefits, that case doesn’t justify resignation. BEE is one tool to make capitalism a more sustainable facet of a circular (as opposed to extractive) economy, but it’ll never become that if we spend more time pointing out what’s wrong with it than adjusting, measuring and iterating it so it’s more than just a tool for elites’ enrichment.
5.3. This is over-regulation, it’s impractical and it’s a demand for 'special rights'
Over-regulation: as long as there’s inequality traceable through intersectional patterns of oppression, there’s a case for the adjustment of legislation that addresses inequality and inequity.
Impracticality: there are more ways of accomplishing this than can be detailed here, but the balance between simplicity and effectiveness probably lies at adjusting the B-BBEE scorecard to give businesses, especially listed and generic (revenue > R50 million) corporates, bonus points for measurably prioritising and incentivising LGBTI visibility and inclusion in their workplaces, procurement practices and outreach programs.
Employment Equity can also be adjusted to be more specific in the way it incentivises visibility and inclusivity. And we can avoid "fronting" if we scrutinise the way verification agencies reward points.
It’s a demand for "special rights": It’s closing the gap between the Constitution and lived reality by repurposing the "special" interventions that have made a class of elites unimaginably wealthy to make the Constitution real.
Call to Action
I don’t know what court cases will be needed to test the efficacy of existing legislation to further highlight legislative gaps, but assuming there’ll be a call for submissions or petitions by Parliament or the DTIC, let’s work ahead.
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But what won’t happen is a government department saying it still needs to consult with LGBTI stakeholders. Worse, if someone raises the disingenuous argument that straight people deserve a say (e.g. through a referendum) on how this takes something from them — that would be for a court to settle.
- Siya Khumalo is the author of You Have To Be Gay To Know God (2018). He is also a Mr Gay South Africa runner-up and Mr Gay World Top 10 finalist.
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