Battle for rights in traditional rites
Nonconforming people are protected by the Constitution in a complex tug-of-war
Recently, I had an opportunity to see a screening of the award-winning film Inxeba: The Wound, which explores, in an incisive fashion, the complex ties involving oppressed sexual orientation, gender identity and expression. This is done provocatively against the backdrop of the Xhosa rite of ulwaluko — a practice that has always been masked in secrecy and is intended to prepare young men for manhood.
The film interrogates this intersection from the perspective of gendernonconforming persons who find it difficult to navigate this space because of how they may deviate from these expectations as a result of their (seemingly irreconcilable) oppressed intersectional identities.
I was immediately struck by the urgency of this discussion in the South African context, especially given the “it’s-a-taboo” perception that South Africans have about sexual orientation, gender identity and expression.
With a constitutional mandate to promote a culture of human rights, the South African Human Rights Commission certainly has an interest in furthering this discussion — with a view to promoting openness, dignity and equality, the founding values of the Constitution.
The film, in my opinion, ignites a dialogue that South Africa urgently needs to have — not only about this immediate intersection between queer people and tradition, but also broadly about the existence of spaces for queer people in culture, tradition, religion and other subcultures.
We are faced here with two opposing forces that may well be irreconcilable — both of which have constitutional protection and could cause a tug-of-war between the right to equality on the one side and the right to culture, tradition and religion on the other.
Values that are determined by culture, tradition and religion are often regarded as sacred, supreme and not subject to censure on any grounds whatsoever. On the other hand, Section 15(3)(b) read with 31(2) of the Constitution provides that the right of a cultural group to enjoy their culture must be consistent with the provisions of the Bill of Rights.
In the 1999 case of Christian Education SA v Minister of Education, the Constitutional Court held that corporal punishment — which was the religious belief of the appellant — violated the right to human dignity.
In the 2005 Bhe v Magistrate Khayelitsha, the same court concluded that the African customary law rule of male primogeniture (inheritance laws that favoured men) was unconstitutional and discriminated unfairly against women on the grounds of race, gender and birth.
In effect, the court contrasted the values in the Constitution (openness, equality and dignity) against the “other” systems and implied a preference for the former and the need for the latter to conform to the ideals of the Constitution.
Put plainly, a Xhosa man (and I’d imagine the same for a Xhosa transgender man) would have the constitutional right to both identify as a Xhosa man and join, enjoy and maintain (individually and collectively) a traditional or cultural association as part of his identity.
For instance, to deny a place for such a person in the Xhosa ulwaluko practice on the basis of their sexual orientation or gender identity would be inconsistent with Section 31 of the Constitution. It may be challenging to provide an effective and final solution to this complex tug-of-war without trivialising the issues on either side.
In the recent past, there has been dialogue, sparked by the Grace Bible Church incident in January, about whether nonconforming subjects of faith have a place in the religious paradigm. These questions remain largely unanswered.
The fact is, every culture, religion and tradition’s openness to nonconforming people is subject to examination. To what extent are we creating spaces for gender-nonconforming people in traditional, cultural practices such as ulwaluko or ukuhlolwa?
Is there space for trans persons? Or does this queerness make the controversy more perverse? It is unthinkable at present, isn’t it, for an openly “not-so-masculine” gay man to be one of the leaders of ulwaluko?
Is there space for trans persons? Or does this queerness make the controversy more perverse?