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PATHSA Submission on the Hate Crimes Bill

22/05/2023 19:00 | Anonymous member (Administrator)

  • A commentary on the Prevention and Combating of Hate Crimes and Hate Speech Bill and PATHSA Submission

    Background to the Bill

    The primary aim of the Bill is to create the offences of hate crimes and hate speech and to put in place measures to prevent and combat these offences.

    The objects of the Act, once adopted, are to:

  • ·       give effect to the Republic’s obligations regarding prejudice and intolerance as contemplated in international instruments;
  • ·       provide for the prosecution of persons who commit offences referred to in this Act and provide for appropriate sentences;
  • ·       provide for the prevention of hate crimes and hate speech;
  • ·       provide for effective enforcement measures;
  • ·       provide for the co-ordinated implementation, application and administration of this Act;
  • ·       combat the commission of hate crimes and hate speech in a co-ordinated manner; and
  • ·       gather and record data on hate crimes and hate speech.
  • A hate crime is when a person commits any recognised offence under any law, referred to as the ‘‘underlying offence’’. The commission of that offence is motivated by prejudice or intolerance on the basis of characteristics or perceived characteristics of the victim, as listed in the Bill, a family member of the victim or the victim’s association with or support for a group of persons who share the said characteristics. The common law offence of crimen injuria is excluded. Crimen injuria consist of unlawfully and intentionally impairing the dignity or privacy of another person.

    Hate speech occurs when any person intentionally publishes, propagates, advocates, makes available or communicates anything to one or more persons in a manner that could reasonably be construed to demonstrate a clear intention to be harmful or to incite harm and to promote or propagate hatred based on defined grounds. This includes when hate speech material is intentionally distributed or made available in cyber space, and the said person knows that such electronic communication constitutes hate speech. It excludes aspects of freedom of expression such as (a) freedom of the press and other media; (b) freedom to receive or impart information or ideas; (c) freedom of artistic creativity; and (d) academic freedom and freedom of scientific research.

    These exclusions cover “any bona fide interpretation and proselytising or espousing of any religious conviction, tenet, belief, teaching, doctrine or writings, except if it advocates hatred that constitutes incitement to cause harm based on any protected grounds.”

    Submission from PATHSA

    The Professional Association for Transgender Health South Africa (PATHSA) is an interdisciplinary health professional organisation working to promote the health, wellbeing, and self-actualisation of transgender and gender diverse people. PATHSA makes the following submissions and comments:

  • ·       We welcome the Bill and appreciate the efforts which have been made to arrive at legislation that may prevent, or address harms aimed at transgender (hereafter trans), gender diverse or non-binary (TGDNB) people. TGDNB is an umbrella term for all whose gender identity is not aligned with their sex assigned at birth.
  • ·       We welcome the inclusion of the grounds “gender identity or expression or sex characteristics” as a basis for a hate crime or hate speech, noting that TGDNB people are particularly affected by stigma and discrimination because their gender presentation does not conform to social expectations and norms.
  • ·       We welcome the emphasis in the Bill on prevention, not just prosecution, and we call for resources to be made available to create a social and cultural climate of acceptance towards TGDNB people.
  • ·       On the question of resources, we call for meaningful data collection on hate crimes and hate speech, to better inform prevention work.
  • ·       We would like to note that the school is a particular context where harm can be aimed at TGDNB children and teenagers, and we would like to see protection from hate crimes or hate speech aimed at young people specifically.
  • ·       We would like to know if hate crimes or hate speech, aimed at for example a child of a TGDNB person, because that person is TGDNB (or assumed to be so), is recognised under the Act.
  • ·       We would like to know if deliberately misgendering someone or refusing to use that person’s preferred pronoun, title, or name, in the commission of another offence, is considered a hate crime, or if these acts full under the category of crimen injuria, which is excluded from the Act.
  • ·       Although the question of discrimination on the grounds of “sex characteristics” is envisaged in the Act, we would like to see more explicit mention of intersex people who are often under-recognised and under-represented in legal protections. Intersex people fall on a spectrum of sex characteristics and because their sex assigned at birth may not align with subsequent gender identity, some intersex people would fall into the category of TGDNB.
  • ·       We call for discussion on possible hate crime aimed at TGDNB people to include the question of public bathrooms. As “moral panic” around gender diversity increase, we argue that not only is it possible that TGDNB people will be harassed in public bathrooms, but that gender non-conforming, cis-identifying (that is, they identify with sex assigned at birth), people are likely to be subjected to hateful behaviour.
  • ·       While we acknowledge questions of free speech and religious freedom, we note with concern that it is in these very religious spaces where stigma and discrimination happen and call for vigilance in monitoring religious spaces.
  • ·       In addition some TGDNB people face bureaucratic inertia, misinterpretation of the law and frank stigma when they approach the Department of Home Affairs to make name and sex marker changes.
  • ·        In sum, we call for reassurance that TGDNB people are protected by, and included in, this Act. This is a community which is deeply affected by high levels of stigma in health, educational, occupational, and social settings.



PATHSA is an interdisciplinary health professional organisation working to promote the health, wellbeing and self-actualisation of trans and gender diverse people.

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