After a long debate and a number of grievances caused by marriage officers refusing to officiate same sex couples, legislature has finally changed and a new bill has been passed which means officials now have no choice but to officiate same sex marriages.

The bill was introduced by Congress of the People MP Deidre Carter, who on Thursday said that: "It cannot be in our Constitutional democracy that civil servants can be afforded the right in law about whom they would like to serve."

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The marriage officers who had previously been given the option to choose whether or not they would officiate a same sex marriage based on their perception of "conscience, religion and other beliefs" will be undergoing a 24 month transitional training.

DA's MP Hanif Hoosen however labeled this decision as problematic, saying that civil servants shouldn't be given the option but rather to fulfill their duties to the state.

""Why should any civil servant have the right to pick and choose which law they want to follow. This is wrong. If you are an employee of the State you must serve all citizens...What people do in their bedrooms is none of your business," said Hoosen.

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IOL reports that up to 88% officials had previously been exempted from marrying same sex couples, an alarmingly high number.

They also said that the new bill will only apply to civil marriage officers and not religious officers as "no one should be forced to do something that they find morally wrong."

South Africa has been a leader on the continent and globally in terms of legislation to promote the human rights of lesbian, gay, bisexual, transgender, intersex and queer persons (LGBTIQ) – in fact, our Constitution was the first in the world to prohibit discrimination on the grounds of sexual orientation.

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In 2006, South Africa’s Civil Union Act (2006) legalised same-sex marriage, and provided same-sex couples with an opportunity to access the legal protections that heterosexual couples had long had access to.

Civil unions are available to both heterosexual and homosexual couples under the law. Yet, previously, Section 6 of the Civil Unions Act allows marriage officers to refuse to solemnise a same-sex civil union on the grounds of ‘conscience, religion, and belief’.

Matthew Clayton, advocacy coordinator Triangle Project, a human rights organisation promoting LGBTIQ rights at explained the serious impact of the previous clause, saying that the law made it legal for DHA staff to discriminate against people based on their sexual orientation.

The previous law created a situation where homophobia, far from being discouraged, is one of the accepted ways to conduct yourself within the DHA. It also created a situation where same-sex couples have to negotiate access to state services that they are legally entitled to.”

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In 2016, of 409 Home Affairs offices across the country, only 117 had officials willing to marry same-sex couples. Reports have indicated that just over 37% (421 of the department of Home Affairs’ 1130 marriage officers) were exempt from conducting these marriages as of 2017. The argument from the Department of Home Affairs in 2017 was that they could not force officers to conduct these marriages, and that they had to protect the rights of their workers.

Yet for Rebecca Davis, journalist and author, this explanation is insufficient. “If government officials are unable to undertake their jobs in fulfillment of the Constitution, they should be removed from their posts. We wouldn’t accept government officials requesting the right to discriminate against people of different races or religions, so why should sexual orientation suddenly be up for grabs?” she asks.

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This year, Deidre Carter of the Congress of the People (COPE) introduced a proposed amendment to the Civil Union Act, which would see this clause of the Act removed to promote the right to equality. Triangle Project made a written submission to Parliament on the proposed amendment, and argues that it will be a first step towards promoting constitutional equality for same-sex couples.

Although the period for written submissions is now closed, there is still an opportunity for engagement on this law at Parliament. Clayton clarifies, “the legislative process will now move on to the Home Affairs Portfolio Committee at Parliament. It will be important for those who support equality to make their presence felt at these meetings.” 

*This article was updated 7 December to reflect the change in law.

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