The rights of gay/lesbian children in South African public schools: an overview of the relevant legal and institutional framework.

Abstract

South Africa has a history of discrimination against gay and lesbian (GL) learners in public schools, despite the fact that it was the first country to adopt a constitution protecting all people from discrimination in terms of sexual orientation, and despite that it is a signatory to various international human rights treaties and declarations. The research study will be underpinned by the study of relevant literature, policies and laws from the international, regional and national levels. While international and regional legal frameworks, and basic education policies and guidelines, have been adopted for the protection of GL learners, teachers are often ignorant and hence have no skills for dealing with these learners. There are currently no programs in the curriculum for training teachers with regards to GL learners. Most teachers therefore perceive GL learners as people who are mentally disturbed, sinners and/or carriers of HIV/AIDS, or as people who are weak and unsure of their culture – and all of this brings about bullying in the form of name- calling. The existing gender hierarchy thus forces GL learners not to come out, and nor can they express themselves freely without prejudice. The Department of Basic Education (DBE) has different structures mandated by the Constitution and by schools’ policies, which are applicable to GL learners. However, despite the policies, guidelines and ample pertinent legal frameworks, GL learners still experience name-calling, harassment inflicted by heterosexual learners, harassment from teachers, rejection and isolation. This negates the intention that schools should be regarded as safe places for learners. There are therefore still enormous challenges facing the country in this regard. The Constitution, which is the supreme law of the land, in Section 9 (1) states that everyone is equal before the law and everyone has the right to equal protection and benefit from the law. The Bill of Rights, Clause 28 (2), and the Children’s Act, Section 9, enshrines the principle that a child’s best interest is of paramount importance in every matter concerning the child.