Possibilities Foreclosed: The Civil Union Act and Lesbian and Gay Identity in Southern Africa

Abstract

In 2006 the Civil Union Act was enacted in South Africa, allowing same-sex couples to enter into marriages or civil partnerships. These relationships mirror the entry requirements and consequences of civil marriages, but contain no features of African customary marriages. This, in turn, reflects a belief that customary marriage and the African communities within which it occurs, are more traditional and conservative than civil law and that they lack the ability to accommodate same-sex relationships. This article shows that the opposite is true. Social science evidence shows that African communities in Southern Africa have long allowed same-sex marriages in a range of contexts and forms, none of which are acknowledged by the Civil Union Act. Moreover, the particular form of globalized gay and lesbian identity upon which the Act is premised, fails to reflect the more complex practices and beliefs of those who have same-sex relationships in African societies. In its insistence on merely mirroring civil marriage, the Civil Union Act therefore failed to grasp the opportunity to imagine richer concepts and more sophisticated forms of legislation which could have been inspired by the customary law.