Congratulations, South Africans!

You live in a country that was the first in the world to prohibit discrimination based on sexual orientation.

You might also want to pat yourself on the back, come Freedom Day, because several other laws have been passed that allow people of the same sex to marry.

And yes, according to our constitution, South African citizens aren’t supposed to be discriminated against from employment on the basis of their sexual orientation.

But to what extent does policy matter when, as a queer and transgender citizen, I am prevented from experiencing my freedom of movement and self-determination to the fullest?

The constitution does not protect us from violence

Data from the 2015 Gauteng City-region Observatory found that 14% of Gauteng residents agree that it’s acceptable to be violent towards gay and lesbian people.

If this number doesn’t sound alarming, then maybe the hashtags will: #MotshidisiPascalina, #TebogoMokhoto, and #LuciaNaidoo. These are just three of many lives that have been lost at the hands of queer- and transphobia.

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It’s deplorable that these lives are spoken about only in death – often as a plea for the Rainbow Nation to unite against homophobia.

Society lives and experiences life through binaries often as a way of uncomplicating life. Hard, and soft; dark and light; men’s clothes and women’s clothes.

What this means is that the grey and wonderful space between the two extremes is often thought of as unworthy.

For many queer and transgender people, it’s this grey space in between society’s binaries that often leads to the violence that’s enacted on their bodies in the streets and even at home.

The limits of policy and law on the streets

For instance, a non-gender conforming person might spend 30 anxiety-inducing minutes in front of the wardrobe deciding what to wear. The options will be a dress bought on sale or a pair of pants.

At birth, this person was assigned male, and gendered as a boy, but this didn’t account for how they would come to experience and enjoy life as a femme person.

Wearing the dress often leads to stares, negative comments and/or physical assault. Wearing a pair of pants is an attempt at becoming invisible, and conforming to what society expects from men and women. This is not to say that gender identity is a performance through clothing, but an emphasis on the limitations we’ve created and perpetuate.

Where does policy play a role when you’re prevented and harassed from catching a taxi because the driver won’t let in “a man in a dress”?

Or consider the masculine lesbian woman who received death threats on her way to a job interview that was cut short without any explanation. Of course, the entire office knows that the HR manager is a homophobe who believes that women should “know their place.”

Don’t forget the transgender woman who can’t afford gender reassignment surgery, and is assaulted regardless of whether she uses bathrooms assigned for men or women.

I would love to say that these people are hypothetical, but these are the daily lived experiences of many people across South Africa. They’ll either become hashtags or percentages used to explain why current policy isn’t enough.

How can we legislate against this discrimination?

Alok Vaid-Menon, an artist and author who identifies as a non-binary transfeminine person, notes that “the law has, and continues to be, a way to do the performance of justice without the actual realisation of it.”

When thinking of this in the post-apartheid South African context, what does the constitution or Freedom Charter mean if there still isn’t any adequate access to safety, education and healthcare for queer and transgender people?

In a country where policy is held above praxis (when we translate knowledge and ideas into action), how do we find ways of building more inclusive surroundings? Whose freedom are we actually celebrating on this Day?

Tiger Maremela is an artist and writer based in Joburg. You can subscribe to their (sometimes) weekly newsletter, internet treatz, here.

Photography by Tiger Maremela

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