In this thesis I explore the implications of the extension of 'spousal' status to samesex couples from the perspective of queer people who experience intersectional or complex oppression. This study is grounded in a rejection of the necessity or efficacy of attempting to understanding the oppressions facing queer people from only one perspective. I reject the notion that such a simplistic approach to understanding oppression is conceptually honest. Put simply, I argue that what is often characterised as a purely 'gay and lesbian' approach to reform—namely, the consideration of only oppression related to 'sexual orientation' or 'heterosexism'—is in reality the prioritisation of the limited perspective of those who only experience systemic disadvantage related to their race. These people are a small minority of queer people. Unlike many other academics and activists, I do not conclude with a 'yes' or 'no' response to the question of whether same-sex spousal status should be sought. The analysis presented in this thesis does not permit such a final conclusion for three reasons. First, I argue that the implications of the extension of spousal status vary depending on the institutional context; in other words, the extension of spousal status is very different in the context of social assistance law as compared to the provision of employment-related benefits. Secondly, I argue that the extension of spousal status also varies among queer people; for example, the implications of the extension of spousal status to poor queers are vastly different from those who are wealthy. Thirdly, I argue that the decision to support the extension of spousal status to same-sex couples is inherently political; this decision cannot be immunised from political challenge on the basis that it is derived from some allegedly objective legal or socio-scientific calculus. Although I have endeavoured adopt a inter-disciplinary approach, this thesis does focus on legal rights discourse. To my mind, this focus is appropriate given the emphasis on 'rights talk' and the assumed benefits of formal equality within the community of academics and activists working on queer issues. In various parts of this thesis, I focus on the approaches of activists, academics, judges and legislators to the issue of the rights of queer people and the nature of equality. Ultimately, I conclude that until we begin to appreciate the complexity of the oppressions facing queer people, and avoid the false prioritisation of a 'purely gay and lesbian oppression' perspective, we will be unable to work in coalition or to effect progressive social change.

In this thesis I explore the implications of the extension of 'spousal' status to samesex couples from the perspective of queer people who experience intersectional or complex oppression. This study is grounded in a rejection of the necessity or efficacy of attempting to understanding the oppressions facing queer people from only one perspective. I reject the notion that such a simplistic approach to understanding oppression is conceptually honest. Put simply, I argue that what is often characterised as a purely 'gay and lesbian' approach to reform—namely, the consideration of only oppression related to 'sexual orientation' or 'heterosexism'—is in reality the prioritisation of the limited perspective of those who only experience systemic disadvantage related to their race. These people are a small minority of queer people. Unlike many other academics and activists, I do not conclude with a 'yes' or 'no' response to the question of whether same-sex spousal status should be sought. The analysis presented in this thesis does not permit such a final conclusion for three reasons. First, I argue that the implications of the extension of spousal status vary depending on the institutional context; in other words, the extension of spousal status is very different in the context of social assistance law as compared to the provision of employment-related benefits. Secondly, I argue that the extension of spousal status also varies among queer people; for example, the implications of the extension of spousal status to poor queers are vastly different from those who are wealthy. Thirdly, I argue that the decision to support the extension of spousal status to same-sex couples is inherently political; this decision cannot be immunised from political challenge on the basis that it is derived from some allegedly objective legal or socio-scientific calculus. Although I have endeavoured adopt a inter-disciplinary approach, this thesis does focus on legal rights discourse. To my mind, this focus is appropriate given the emphasis on 'rights talk' and the assumed benefits of formal equality within the community of academics and activists working on queer issues. In various parts of this thesis, I focus on the approaches of activists, academics, judges and legislators to the issue of the rights of queer people and the nature of equality. Ultimately, I conclude that until we begin to appreciate the complexity of the oppressions facing queer people, and avoid the false prioritisation of a 'purely gay and lesbian oppression' perspective, we will be unable to work in coalition or to effect progressive social change. / Law, Peter A. Allard School of / Graduate

In this thesis I start by reviewing the theoretical perspectives that have informed the debate around equality rights for gays and lesbians. Next, I will analyze the concept of equality developed by the Supreme Court of Canada under section 15 of the Canadian Charter of Rights and Freedoms. In the Andrews case, decided in 1989, the Supreme Court of Canada rejected a model based on formal equality, embracing instead the far-reaching concept of substantive equality as a way to redress historical prejudice and disadvantage of individuals and groups that fall within enumerated or analogous grounds of discrimination. In the last decade, a number of courts have applied this model to equality claims brought under the Charter by same-sex couples. I will explore the details of several of these cases as well as a variety of statutes relating to same-sex couples. Finally, I will discuss recent law reform proposals that recommend that state benefits should be allocated regardless of the relationship status of the beneficiaries, thereby envisaging more radical changes to the legal system. I conclude that the Canadian approach to equality for same-sex couples has followed an interpretive method that seems to apply a definition of family that is shifting and varies on an ad hoc basis, but that the denial of spousal status under marriage laws represents a limitation of equality rights still to be overcome. I also conclude that, in fact, the concept of status may still influence the adjudication process under section 15 of the Charter as far as marriage rights are concerned. This is because the framework of analysis under section 15 calls for an assessment of the claimant's position in the larger socio-political context, and this element, if not properly circumscribed, risks being corrupted by existing prejudices and biases relating to family.

In this thesis I start by reviewing the theoretical perspectives that have informed the debate around equality rights for gays and lesbians. Next, I will analyze the concept of equality developed by the Supreme Court of Canada under section 15 of the Canadian Charter of Rights and Freedoms. In the Andrews case, decided in 1989, the Supreme Court of Canada rejected a model based on formal equality, embracing instead the far-reaching concept of substantive equality as a way to redress historical prejudice and disadvantage of individuals and groups that fall within enumerated or analogous grounds of discrimination. In the last decade, a number of courts have applied this model to equality claims brought under the Charter by same-sex couples. I will explore the details of several of these cases as well as a variety of statutes relating to same-sex couples. Finally, I will discuss recent law reform proposals that recommend that state benefits should be allocated regardless of the relationship status of the beneficiaries, thereby envisaging more radical changes to the legal system. I conclude that the Canadian approach to equality for same-sex couples has followed an interpretive method that seems to apply a definition of family that is shifting and varies on an ad hoc basis, but that the denial of spousal status under marriage laws represents a limitation of equality rights still to be overcome. I also conclude that, in fact, the concept of status may still influence the adjudication process under section 15 of the Charter as far as marriage rights are concerned. This is because the framework of analysis under section 15 calls for an assessment of the claimant's position in the larger socio-political context, and this element, if not properly circumscribed, risks being corrupted by existing prejudices and biases relating to family. / Law, Peter A. Allard School of / Graduate

Thesis (PhD)--Stellenbosch University, 2015. / ENGLISH ABSTRACT: Marriage is regarded as one of the most important and universal cultural symbols of belonging, and incorporates a range of privileges that can be acquired in no other way. It is where relationships of desire, politics and economics are fused into personal and public rituals of socially sanctioned connection and inclusion. Yet it draws new boundaries of social inclusion and exclusion or stigmatisation. In this thesis I use narrative inquiry to investigate how seventeen Capetonian queer couples in committed relationships perceive and experience same-sex marriage, and ask whether the Civil Union Act has given them a greater sense of belonging. Sexuality is deeply politicised through gendered disciplinary regimes that impinge on people’s emotional and intimate lives. Sexual politics in South Africa today emerge from a complex history of the sycretisation of widely varying cultural and political discourses, beliefs and practices wrought through colonialism and post-colonial recuperation. The formal protection of lgbti-q identities in the post-apartheid South African Constitution is the outcome of strategic struggles for lgbti-q recognition as human rights. However, formal rights do not necessarily lead to social inclusion as they may not reflect extant cultural values, hence I use the thicker concept of ‘belonging’ as developed by Yuval-Davis to analyse everyday inclusion—a concept which enables me to understand ‘privatised’ and affective dimensions of citizenship shaped by contexts of care and interpersonal intimacy. Worldwide, marriage has long been a central institution in how societies regulate their social and physical reproduction; but marriage also confers privileges which can be accessed in no other way. As in the West, marriage equality was a key aim for lgbti-q struggles in South Africa. But feminists have critiqued marriage as an institution of gendered hierarchy and a site of profound oppression for women. It is at the centre of the private|public dichotomy, and symbolic of women’s differentiated citizenship through, inter alia, the ideology of ‘women as property’. Hence same-sex marriage is deeply politicised in how it upholds or challenges heteropatriarchy. By looking at how a diverse range of same-sex couples in committed relationships perceive and experience same-sex marriage in South Africa, I unravel the ambiguities and contradictions of marriage as a project of belonging for lesbians and gays. Marriage as a sexual politics of belonging is about how lesbian and gay citizens experience equality and dignity in their everyday lives—recognition of them as citizen-subjects, protection of their intimate relationships as well as their struggles for belonging. I engage with the complex outcomes of colonial conquest and post-colonial recuperation on African sexual identities, before turning to an understanding of queer citizenship. I show how belonging is a much thicker concept than citizenship because it accesses our affective relationships. I proceed to use Nira Yuval-Davis’s framework for analysing belonging. She divides belonging into two streams: facets of belonging relating to identities, social locations and political and ethical values; and a politics of belonging. Struggles for belonging are waged around boundaries of inclusions and exclusions, and only become visible when belonging is contested. Projects for belonging are complex and multi-layered negotiations around the boundaries of belonging. Using narrative inquiry, I present the stories of seventeen couples and six key informants to fashion a narrative about same-sex marriage as a project of belonging. I asked them about coming out, and how they met their partners. They also told me about their relationships with children and significant others. We talked about their perceptions and experiences of same-sex marriage, and their views of the Constitution and Civil Union Act. I also asked about their sense of safety as queers and what they thought needed to be done to help queers belong (more). The participants’ most significant sense of belonging derived from having their rights protected in the Constitution. Their sense of entitlement to be who they are, was the outcome of powerful struggles for recognition. The various couples had been in committed relationships for between 8 and 52 years. Some had made use of the immigration status of same-sex partners to be together, which meant they were instantly thrown into ‘marriage’-like situations. Some didn’t want to get married, but 10 couples were married. Except for two couples, all the couples who got married did it primarily for the tangible benefits associated with marriage: through marriage they established formal kinship relationships linked to property and commitment to care. They were generally not interested in the cultural trappings of ‘weddings’, and had modest and quiet ceremonies. All the married couples affirmed that the Act had given them a greater sense of belonging. While all the participants valued formal recognition through the Constitution, the lack of substantive equality needed to be addressed to ensure future belonging for lgbti-q. I concluded that same-sex marriages are powerful social institutions, capable of either upholding heteropatriarchies through homonormative performances, but also capable of subversions. A foundational challenge comes through disrupting the ‘women as property’ exchange embedded in most marital traditions. / AFRIKAANSE OPSOMMING: Die huwelik word beskou as een van die belangrikste en algemeenste kulturele simbole van samesyn, en behels ’n reeks voordele wat op geen ander manier toeganklik is nie. Die huwelik is die kern waar begeerte, politiek en ekonomie verenig in persoonlike en openbare instellings van gemeenskaplike aanvaarding en verbinding. Terselfdertyd teken dit ook nuwe grense van sosiale insluiting, uitsluiting of stigmatisering. In hierdie tesis ondersoek ek wat sewentien Kaapse queer paartjies in vaste verhoudings dink van gay huwelike en hoe hulle dit ondervind, en ek vra of die Civil Union Act hulle meer samesyn (belonging) laat voel. Seksualiteit is uiters polities omdat dissiplinêre sisteme mense se emosionele en intieme lewes reguleer. Seksuele politiek in die huidige Suid-Afrika spruit uit ’n gekompliseerde geskiedenis van ’n samevloeiing van verkillende kulturele en politiese diskoerse, gelowe en praktyke van kolonialisme en post-kolonialistiese herstel. Die formele beskerming van lgbti-q identiteite in die post-apartheid Grondwet van Suid-Afrika, is die uitkomste van strategiese stryde vir lgbti-q herkenning as menseregte. Nogtans het formele regte nie noodwendig gelei tot sosiale insluiting omdat hulle nie die bestaande kulturele waardes weerspieël nie, daarom gebruik ek die konsep van ‘samesyn’ soos ontwikkel deur Yuval-Davis om alledaagse insluiting te ontleed—’n konsep wat my in staat stel om die ‘private’ en emosionele dimensies van burgerskap, die kontekste van sorg en interpersoonlike intimiteit, te verstaan. Wêreldswyd is die huwelik ’n kerninstelling in die regulering van sosiale en fisiese voortplanting in gemeenskappe. Maar die huwelik verleen ook voorregte wat op geen ander manier verkrygbaar is nie. Soos in die Weste, is huweliks-gelykheid ’n sleutelpunt in stryde vir lgbti-q erkenning in Suid-Afrika. Maar feministe het kritiek gelewer teen die huwelik omdat hulle glo dis ’n terrein vir die instelling van geslagshiërargie en diepgaande onderdrukking van vroue. Dit is die spilpunt waarom die verdeling tussen privaat | openbaar draai, en is simbolies van vroue se gedifferensieerde burgerskap deur, onder andere, die ideologie van ‘vroue as besittings’. Dus is gay huwelike polities ingewortel in hoe hulle heteropatriargie onderskraag of aanvat. Deur te kyk hoe etlike Suid-Afrikaanse paartjies van dieselfde geslag hulle toegewyde verhoudings beskou en ondervind, ontrafel ek die raaisels en dubbelsinnighede van gay huwelike as ’n projek van samesyn vir lesbiërs en gays. Die huwelik as seksuele politiek van samesyn is hoe lesbiese en gay burgers in die alledaagse lewe hulle gelykheid en menswaardigheid beleef—dat hulle as burgers erken word, en dat hulle intieme verhoudings sowel as hulle stryde vir samesyn gekoester word. Ek ontrafel die kompleksiteit van Afrikane se seksualiteite deur die gevolge van koloniale verowering en post-koloniale herwinning aan te pak, voor ek na queer burgerskap kyk. Ek bewys dat samesyn ’n meer betekenisvolle begrip is as burgerskap omdat dit ook ons emosionele verhoudings kan aanspreek. Ek gebruik Nira Yuval-Davis se raamwerk vir die ontleding van samesyn. Sy deel dit in twee strome: fasette van samesyn verbonde aan identiteite, sosiale stand en politieke en etiese waardes; en die politiek van samesyn. Stryde oor samesyn word rondom grense van insluiting en uitsluiting gevoer, en word slegs sigbaar wanneer samesyn bevraagteken word. Projekte vir samesyn is ingewikkeld met veelvoudige onderhandelings rondom grense van in— of uitsluiting. Ek gebruik verhaalontleding om die stories van sewentien paartjies en ses sleutelinformante te omskep in ’n vertelling omtrent gay huwelike as ’n projek van samesyn. Ek het hulle gevra oor hoe hulle “uit die kas geklim” het, en hoe hulle hulle minnaars ontmoet het. Hulle het my ook vertel van hulle verhoudings met hulle kinders en belangrike mense in hulle lewens. Ons het gepraat oor hulle sienswyses oor, en ondervindings van, gay huwelike, en hulle sienings oor die Grondwet en Civil Union Act. Ek het ook uitgevra omtrent hoe veilig hulle voel as queers, en wat hulle dink gedoen moet word sodat queers (meer) samesyn kan ondervind. Die deelnemers se grootse gevoel van samesyn was as gevolg van hulle regte wat gekoester word deur die Grondwet. Hulle gevoel van geregtigheid om te wees wie hulle is, het gespruit uit ’n kragtige stryd vir erkenning. Die verskillende paartjies was tussen 8 en 52 jaar lank in vaste verhoudings. Party het gebruik gemaak van die immigrasie wetgewing vir gay minnaars om saam te bly, wat beteken het dat hulle hulle summier in ‘huwelik’-soortige verhoudings bevind het. Party wou nie trou nie, maar 10 paartjies het getrou. Behalwe twee paartjies, het al die paartjies gesê hulle het hoofsaaklik getrou om die tasbare voordele van huwelike te geniet: deur huwelike kon hulle formele verwantskappe skep met besittings en verpligtings tot sorg. Hulle was oor die algemeen nie geïnteresseerd in die kulturele vertoon van troues nie, en het beskeie en stil seremonies gehou. Al die getroude paartjies het gesê dat die Civil Union Act hulle ’n groter gevoel van samesyn gebring het. Alhoewel al die deelnemers die amptelike erkenning van die Grondwet waardeer het, het hulle gesê dat die gebrekkigheid aan substantiewe gelykheid aangespreek moet word om toekomstige samesyn vir gays te verseker. Ek het tot die gevolgtrekking gekom dat gay huwelike kragtige gemeenskaplike instellings is wat heteropatriargieë kan onderskraag deur homonormatiewe gedrag, maar dat hulle ook ondermynend kan wees. ’n Fundamentele uitdaging is die moontlike ontwrigting van ‘vroue as besittings’ onderhandelings wat in meeste huwelikstradisies vasgelê is.

This short dissertation is an appraisal of same-sex marriages. The traditional arguments against same-sex unions are examined and rejected as being circular, unconvincing and baseless. Some of the international developments on the subject of same-sex unions are examined and it is noted that a slow but distinct change in attitude towards same-sex marriages is beginning to emerge from international judiciaries. The legal position of people with same-sex orientation in the South African legal system is examined with special reference to our Constitution. It is submitted that our Constitution is the foremost vehicle for legal change in this regard and that the equality clause of our Constitution is authority for the recognition by the law of same-sex marriages. This dissertation concludes that same-sex marriages ought to be fully accepted and recognised by the law for reasons, inter alia, of fairness and equality for people of same-sex orientation. / Constitutional, International & Indigenous Law / LL. M.

This short dissertation is an appraisal of same-sex marriages. The traditional arguments against same-sex unions are examined and rejected as being circular, unconvincing and baseless. Some of the international developments on the subject of same-sex unions are examined and it is noted that a slow but distinct change in attitude towards same-sex marriages is beginning to emerge from international judiciaries. The legal position of people with same-sex orientation in the South African legal system is examined with special reference to our Constitution. It is submitted that our Constitution is the foremost vehicle for legal change in this regard and that the equality clause of our Constitution is authority for the recognition by the law of same-sex marriages. This dissertation concludes that same-sex marriages ought to be fully accepted and recognised by the law for reasons, inter alia, of fairness and equality for people of same-sex orientation. / Constitutional, International and Indigenous Law / LL. M.

With the abolition of apartheid and the introduction of a new constitutional dispensation, the state’s totalitarian exclusion of homosexuals from legal recognition was relegated to a past era. The constitutional commitment to human dignity and equality and the inclusion of sexual orientation as a prohibited ground of discrimination led to the recognition of same-sex life partnerships and, inevitably, same-sex marriage by means of a civil union regime. The object of this study is to investigate the scope of the legal consequences provided to same-sex couples by the Civil Union Act 17 of 2006 and to determine the legal standing of same-sex couples who fall outside the ambit of the Act. The study includes constitutional arguments pertaining to the continued recognition of same-sex life partnerships and a critical analysis of the constitutionality of the Civil Union Act as a separate measure to govern same-sex marriage. This investigation is conducted with reference to relevant legislation and case law. / Private Law / LL.M. (Private Law)

　　　1 January 2010 was a milestone for the survivors and victims of same-sex domestic violence in Hong Kong. After a hard fought legislative battle, the Domestic and Cohabitation Relationships Violence Ordinance (DCRVO) was extended to cover cohabitation relationships irrespective of sexual orientation. 　　　With the inclusion of same-sex cohabitants in the legislation, gay survivors are provided the same legal protection as different sex couples. It is believed that equality has been achieved for gay victims, in theory at least. Indeed, the topic of same-sex domestic violence seemed to vanish from the public sphere as soon as the Ordinance was enacted. Nevertheless, considering the cultural and social obstacles experienced by gay victims of domestic violence, e.g. social perception of homosexuality and the fear of being ‘outed’ by reporting the incidents, coupled with a lack of supplementary support services available to people with alternative sexual orientations, it is uncertain how effective this amendment will be to Hong Kong sexual minorities in practice. Therefore, the primary research question for this thesis is to what extent the DCRVO is effective in protecting in practice. 　　　This research question will be answered by a combination of qualitative and quantitative empirical research methods. This paper focuses on three areas particularly - the awareness amongst the gay community in Hong Kong of the legislation; the availability of same-sex domestic violence support services; and the subsequent complementary policies provided by the government. This study argues that without adequate complementary policies, the DCRVO will always remain to be a piece of work in progress, and not the ultimate solution for gay victims in Hong Kong. / published_or_final_version / Law / Master / Master of Philosophy

With the abolition of apartheid and the introduction of a new constitutional dispensation, the state’s totalitarian exclusion of homosexuals from legal recognition was relegated to a past era. The constitutional commitment to human dignity and equality and the inclusion of sexual orientation as a prohibited ground of discrimination led to the recognition of same-sex life partnerships and, inevitably, same-sex marriage by means of a civil union regime. The object of this study is to investigate the scope of the legal consequences provided to same-sex couples by the Civil Union Act 17 of 2006 and to determine the legal standing of same-sex couples who fall outside the ambit of the Act. The study includes constitutional arguments pertaining to the continued recognition of same-sex life partnerships and a critical analysis of the constitutionality of the Civil Union Act as a separate measure to govern same-sex marriage. This investigation is conducted with reference to relevant legislation and case law. / Private Law / LL.M. (Private Law)