The gay, lesbian, bisexual, transgender, queer and intersex (LGBTQI+) communities have faced much of the blame, discrimination and prejudice linked with HIV/AIDS. A gay person with HIV or AIDS will therefore suffer a double burden of discrimination and negative attitudes towards them – because of having the disease, and because of being gay. As a result of the general prejudice and discrimination against gay and lesbian people, important ways of educating people about HIV and AIDS are lost. For example, sexuality education in schools ignores or avoids discussion about lesbian or gay relationships.

Social prejudice: There is still a lot of social prejudice against lesbians and gay men from their families, in the community; in the workplace; in schools and churches; and in public services.

The effects of double discrimination: LGBTI people often experience double discrimination:

• Discrimination because of their sexual orientation and
• discrimination because of HIV/AIDS

This discrimination can put them at more risk of getting infected with HIV, and make prevention and care work much more difficult. It can also worsen the impact of HIV on their lives.

Reasons for greater risk and vulnerability:

• It is harder to do direct and open safer sex education because many people still think that same-sex acts are immoral.
• Many men and women who have same-sex relationships believe their behaviour is illegal or socially unacceptable – as a result, many deny to themselves, to their close family and friends, and to the broader community, that they love or have sex with people of the same sex.
• Many LGBTQI+ persons cannot or are afraid to, use public services (like health care and welfare, sexuality education) that would help to reduce the risk of HIV infection or would help them to cope with HIV infection.

SEXUALITY EDUCATION AT SCHOOL

Sexuality education ignores, avoids or misrepresents same-sex practices or relationships. Most of the HIV/AIDS prevention materials aimed at school students and youth do not discuss same-sex relations. They are silent about the needs of young people who are not heterosexual, and often young people cannot get access to any information about same-sex practices.

Most of the safer sex tools – like condoms – that are available in South Africa, are not suitable for lesbian or gay safer sex. Lesbian safer sex tools like dental dams and rubber gloves are not distributed widely by the health department. Some of the condoms available in South Africa are not suitable for anal sex, and do not come with lubricants such as KY jelly.

The Constitution prohibits unfair discrimination on the basis of sexual orientation. LGBTQI+ students and youth have a right to get suitable information, sexuality education or life skills training on how to protect themselves.

THE WORKPLACE

LGBTQI+ persons face a lot of discrimination at work, for example in hiring, promotion and benefits. The Labour Relations Act specifically prohibits discrimination on the grounds of sexual orientation and marital status, in line with the Constitution.

MEDICAL AID ASSISTANCE

Lesbian and gay employees were often not allowed to register their same-sex partners on their medical aid schemes, and many companies still exclude same-sex partners from their schemes. The Medical Schemes Act says it is against the law for medical aid schemes to refuse to register a same-sex partner.

CASE STUDY – LANGEMAAT v MINISTER OF SAFETY AND SECURITY (1998)

In Langemaat v Minister of Safety and Security (1998), a lesbian who worked for the police wanted to add her partner to her medical aid as a dependant but was not allowed to because the medical aid scheme did not include same-sex partners as dependants. The High Court said that this was discrimination on the basis of sexual orientation.

MEDICAL CARE

Doctors need to know the sexual orientation of their patients.

But once doctors know this, they have to respect the privacy and confidentiality of the patient.

If a doctor or any health care worker discriminates against you because you are lesbian, gay, bisexual, transgender or intersex they are breaching:

• Their duty to give the best care and treatment to patients
• Their constitutional duty to equal treatment of all patients
• The National Health Act, which prohibits discrimination on the basis of sexual orientation

CHALLENGING UNFAIR DISCRIMINATION BY A MEDICAL PROFESSIONAL

If you do not receive adequate medical treatment or care because a healthcare worker is homophobic, you can:

• Make a civil or constitutional case against the hospital or clinic, or
• complain to a professional body such as the Health Professions Council of South Africa (HPCSA).

MATERNITY LEAVE

The Basic Condition of Employment Act currently does not make provision for parental leave or maternity leave for gay couples.

CASE STUDY – A v STATE INFORMATION TECHNOLOGY AGENCY

In March 2015 a gay man challenged his employer’s refusal to grant him four months’ paid maternity leave on the grounds that he was not the child’s biological ‘mother’. The man married his partner in a civil union in 2010, and a year later the couple entered into an agreement with a woman to carry a baby for them. However the employer refused on the grounds that its policies and the Basic Conditions of Employment Act made provision for maternity leave only for female employees and was silent on leave for people who became parents through surrogacy.

The Labour Court ordered that the employer:

• Recognise the status of parties to a civil union, and prohibit discrimination against couples who have become parents by entering into a surrogacy agreement.
• Pay him for the two months’ unpaid leave he took to care for his newborn baby.

COMPASSIONATE LEAVE

The Labour Relations Act allows for compassionate leave. This is an equal right for people in same-sex relationships. Compassionate leave makes it possible for people to take leave when their partner or a close relative dies or is very ill.

If a company discriminates on the grounds of sexual orientation in giving compassionate leave, this is an unfair labour practice. You can challenge this at the Commission for Conciliation, Mediation and Arbitration (CCMA). (See Chart: What rights mean for people living with HIV and AIDS)