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• 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 has endorsed this declaration:

The Johannesburg Declaration Against SOGIE Change Efforts and Conversion Practices

We, the undersigned mental health professionals from across Africa who attended the convening “Meeting of minds: The role of mental health practitioners and associations in eradicating conversion practices in Africa”, recognizing the historic and ongoing harm that some mental health professionals have committed, continue to commit, and/or are coerced into committing, regarding the use and endorsement of efforts to change people’s sexual orientation, gender identity and/or expression (SOGIE), through so-called reparative therapies and conversion practices more broadly, declare that any attempt to change a person’s SOGIE should have no place in professional mental health practices.

We declare that all efforts to change people’s SOGIE:     

• Are unnecessary, harmful and traumatic; 
• Are human rights abuses, forms of gender-based violence and, in some instances, torture;
• Are unscientific, not rooted in authoritative scholarly theories of sexuality and/or gender, and not proven to be efficacious;
• Are unethical and in breach of internationally accepted professional codes of ethics;
• Go against all contemporary and accepted best practices in mental healthcare; and
• Must be unequivocally rejected in the interests of human rights, health and wellbeing.

Developed at a convening of mental health professionals and allies hosted by the Psychological Society of South Africa (PsySSA) in Johannesburg, South Africa, during 20-21 April 2023.

A statement by the Professional Association for Transgender Health in South Africa (PATHSA)

PATHSA notes with extreme concern that Uganda's parliament has recently passed the Anti-Homosexuality Bill, though it is yet to be signed into law by Uganda’s President Museveni.

Although same-sex acts have long been illegal in Uganda as a legacy of colonial rule, this Bill goes further. "Engaging in acts of homosexuality" is an offence that could be punishable with life imprisonment. "Aggravated homosexuality" provisions mean that “repeat offenders” could be sentenced to death. Landlords who knowingly rent premises for homosexual acts risk going to prison for seven years. However, citizens are no longer required to report LGBTQ persons to the authorities, one important change made to the previous version of the Bill.

The grave and inhumane impact of this Bill on LGBTQ people is an unacceptable injustice. While the thrust of the Bill appears to target gay and lesbian people, it is not clear to what extent trans, gender diverse and non-binary people are affected. But inevitably, the conflation of sexual orientation and gender identity could lead to arrests and attempted criminalisation of all queer people, including those whose gender expression is non-normative or implies homosexuality. Activists and LGBTQ people in Uganda report a general climate of fear, panic and blackmail, and there is a chilling effect on any LGBTQ organising.

As UNAIDS has also noted, enactment of the Bill  “would drive communities away from life-saving services, and obstruct health workers, including civil society groups, from providing HIV prevention, testing and treatment.” In such a context, the idea of any gender-affirming care is unthinkable.

PATHSA believes this Bill is an “assault on already vulnerable sexual and gender minorities” and will contribute to further marginalisation and ill health of trans, gender diverse and non-binary people.

It calls on the South African government to register its protest against the Bill to its Ugandan counterparts and further calls on Uganda to honour its international and continental commitments to non-discrimination, especially noted in Resolution 275 of the African Commission on Human and People’s Rights.

The SA HIV Clinician Society is very pleased to announce a gender affirming healthcare online training for clinicians and allies. Aligned with the guideline published in October 2021. Focusing on a bio-psycho-social approach to the transgender and gender diverse person presenting to your facility, it fulfils a much needed knowledge gap.

Gender-affirming healthcare (GAHC) online training course

https://sahivsoc.org/Subheader/Index/gender-affirming-healthcare-training-course

ABOUT THE COURSE

The course is completely open access and with no charge, the aim being to empower as many people as possible in understanding the provision of good quality, equitable GAHC in the South African setting.

The course is aimed at anyone wanting to understand more about GAHC, whether that be a health care provider, a transgender or gender diverse (TGD) client or anyone else.

The course consists of 11 modules, presented in video format. These presentations are given by experts in the field of GAHC, many of whom are TGD themselves, therefore bringing both personal and professional insights to the course content. The content aligns with the SAHCS GAHC 2021 guideline (click here to view the guideline).

The full course should take 6 hours to complete, and can be completed at your own pace.

COST

The course is free of charge.

EARN CPD POINTS

The course is CPD-accredited* for 6 Clinical + 2 ethics points subject to completion of all modules.

COURSE MODULES

Module 1: Introduction

Module 2: Key terms & creating an affirming space

Module 3: Informed consent

Module 4: Primary Care

Module 5: Non-medical gender-affirming practices

Module 6: Psychosocial care

Module 7: Hormone therapy

Module 8: Surgery

Module 9: Voice & communication

Module 10: Providing comprehensive sexual and reproductive care

Module 11: Institutional settings

On this International Transgender Day of Visibility, we celebrate with our transgender, gender diverse and nonbinary folks. We salute those that have been able to access gender-affirming healthcare and stand by those who are unable to live freely because of social circumstances, inability to access gender-affirming healthcare, or any form of marginalisation and discrimination.

We acknowledge the strengths and vulnerabilities of our trans communities navigating this cis normative world, and today, particularly, add our concern for the well-being of the LGBTIQA+ community in Uganda.

May we keep on doing hope in these difficult times.

At the PATHSA AGM held on 12 November 2022, four new board members were elected. A warm welcome to Allanah Wilson, Ariane Spitaels, Madeleine Muller and Pierre Brouard.

PATHSA Chairperson, Chris McLachlan, was quoted in the Sunday Times on 27 November 2022, and interviewed on Newzroom Africa, regarding a manual for preschool teachers that recommends making children's rhymes and songs gender neutral. 

Here is the link to the recording:

https://www.youtube.com/watch?v=tJw5JhdC2kU&t=334s

Chris said that creating an inclusive environment in which children have space simply to play, experiment and be themselves, will have a positive impact on children's mental health. "The school needs to be a safe space for all and this manual provides practical ways to accomplish that." 

The long awaited updated WPATH Standards of Care 8 has been published and can be accessed here:

https://doi.org/10.1080/26895269.2022.2100644

Letters to medical aids to support payment for gender-affirming treatment is available on request from secretary@pathsa.org.za

There are 3 versions, for gender-affirming hormones, pubertal suppression and surgery.

PATHSA endorsed an open letter written by PsySSA to the editor of the South African Jewish Report (SAJR), regarding an op-ed titled  "There’s no Pride to be found in gender ideology"  that was published in the SAJR on 30 June 2022. It is described in the letter as a hurtful and discriminatory diatribe that creates a climate for people to justify and rationalise anti-queer and transphobic discrimination or violence. 

The open letter can be read here:

https://www.psyssa.com/open-letter-to-the-editor-of-the-south-african-jewish-report-adam-sachs-theres-no-pride-to-be-found-in-gender-ideology-should-be-retracted-and-an-apology-for-publi/

“I hate the word homophobia. It’s not a phobia. You’re not scared. You’re an asshole.” – (attributed to Morgan Freeman)

When writing about homophobia, this well-known quote from actor Morgan Freeman always jumps to mind. Such a loaded word, complex concept, yet in the same category of people scared of spiders, heights and all other random things. So why a phobia? The Merriam-Webster Dictionary describes a phobia as “an exaggerated usually inexplicable and illogical fear of a particular object, class of objects, or situation.”

What about a homosexual, transgender, or bisexual human scares you so much that it is more pronounced than fears? I believe it is time that we as, well, humanity (!?) start facing our fears, especially if they are “usually inexplicable and illogical”.

In my work as clinical social worker I work with a variety of clients on and off the gender spectrum, and an expansive lot with different sexual orientations. As a clinician I also feel that I can never know or learn enough within this field! And with that, perhaps, THAT is where we need to start if we want to see change: ask questions, gain knowledge, expand your horizons! I am a firm believer that in order for people to do better, the need to know better. If they then consciously make an educated decision to discriminate, put down and hate a person based on their gender and sexuality, then I stick with mr. Freeman’s quote.

However, if someone starts asking the difficult questions and having the difficult conversations, exploring, expanding and purely and honestly want to do and be better, we have to step up and gently teach and educate. Whether it is the hundredth time you explain the differences in gender identity, gender expression and sex and sexuality, for that person it might be the first honest, difficult conversation they have on this topic. If we want the world to change, we have to be the change. If we want to create awareness, we have to be okay to have the difficult conversations. If this change is to happen, it needs to start with us: the trans, gay, lesbian, bisexual person, or ally. We don’t just need an ‘International Day Against Homophobia, Transphobia and Biphobia’, it’s an everyday thing, but man, when we get our day, let’s step up, be the better person and gently speak to these “fears”, whichever they may be, of those who are willing to listen.

Marchané Janeke, PATHSA member