Introduction
Belonging is not visibility, and it is not law on paper. It is the ability to live without fear, to move in public without calculating risk, and to express oneself without anticipating punishment. [1] For people whose Sexual Orientation, Gender Identity and Expression, or Sex Characteristics (SOGIESC) fall outside dominant norms, belonging is often conditional or violently denied.
South Africa is frequently celebrated for its progressive legal framework: the first constitution to prohibit discrimination based on sexual orientation and one of few African states recognizing same-sex marriage. Yet the daily experiences of queer and trans people – particularly those who are Black, working-class, or gender-nonconforming – reveal a painful gap between legal promise and lived reality.
This contribution argues that legal recognition is necessary for inclusion, but never sufficient. Rights that remain symbolic or inconsistently implemented cannot generate meaningful belonging. South Africa demonstrates that law must be lived, enforced, and embodied in communities – and that belonging depends on material safety, collective struggle, and relational care.
What Are SOGIESC Rights – and Why Do They Matter for Belonging?
SOGIESC rights affirm that queer and trans people are full subjects of law, entitled to dignity, equality, bodily autonomy, and protection from violence. They counteract the historical relegation of gender- and sexually diverse people to legal invisibility – an erasure that legitimates stigma and institutional neglect. [2]
Legal recognition shapes access to healthcare, employment, education, and public services. Without it, queer and trans people remain exceptions to the social contract, positioned as marginal or undeserving of protection.
But even when rights exist, belonging is not automatic. If protections apply only to those who fit narrow norms of “acceptable” queerness, inclusion becomes conditional. Belonging requires legal status and social safety – the ability to live openly without fear.
Are there SOGIESC Rights in South Africa? A Legal Overview
South Africa’s post-apartheid legal system contains some of the strongest SOGIESC protections worldwide. Key milestones include decriminalisation of sodomy (1998) [3], same-sex marriage recognition (2005) [4], and the Alteration of Sex Description Act [5] enabling gender marker changes.
These accomplishments reflect an ambitious constitutional vision. But progressive law does not ensure progressive practice. Gender marker changes remain bureaucratically inaccessible, burdened by medical requirements. Home Affairs offices routinely harass queer couples and trans applicants. Institutional prejudice and inconsistent implementation undermine constitutional promises.
The South African case shows that legal frameworks, without institutional accountability, cannot deliver transformative justice.
The Disjuncture Between Law and Lived Reality
Despite legal protections, South Africa remains deeply unsafe for many SOGIESC individuals. Homophobic and transphobic violence persists, especially in Black townships. [6] Lesbian women and trans people face threats of “corrective rape,” assault, and targeted killings. [7]
Organisations such as Iranti document numerous unreported cases due to fear of police mistreatment, social exposure, or retraumatisation. Police often refuse to open cases or respond with hostility, turning the state into another site of harm. [8]
This reveals a core truth: rights not implemented cannot protect. Legal recognition without enforcement becomes symbolic rather than transformative.
Structural Barriers to Belonging: Wo Is Left Out?
Belonging within the LGBTQI+ umbrella is uneven. Race, class, gender identity, and geography shape access to safety and rights.
A middle-class cisgender gay man in an affluent Cape Town suburb may enjoy visibility and relative security. Meanwhile, a trans youth in Khayelitsha faces daily vulnerability, harassment, and institutional marginalisation. Dominant narratives still privilege gender-conforming queer subjects who fit Western ideals of citizenship. Sex workers, non-binary people, informal labourers, and those in chosen families often remain illegible to the state. [9]
Even in a rights-based regime, inclusion is conditional. Belonging is mediated by structural power.
Belonging as Praxis: Community Beyond the State
Because legal protections are inconsistently applied, queer communities build parallel systems of care, safety, and resistance. Organisations such as GALA [10], OUT [11], Iranti, and Triangle Project [12] help translate rights into lived experience through education, advocacy, documentation of violence, and peer support.
These efforts show that law is not static; it is shaped from below by those who experience its failures. Activism turns abstract rights into embodied realities. Community-based belonging becomes a form of praxis – grounded in solidarity, care, and survival.
Activist Voices: Lived Resistance an the Demand for Transformative Belonging
Centering lived voices reveals the stakes of this gap. As Tsidi Zondi from Mfuleni – whose partner Mpho was murdered in a 2021 hate crime – explains:
“The township we are living in, especially at Mfuleni, it is not safe for us lesbians. The guys there are against us for falling in love with other girls – they think that girls are supposed to fall in love with them. … You have to be vigilant and look after yourself. Do not just go anywhere thinking that you are safe. These days, we are getting robbed, we get raped, and men have the audacity of thinking that they have a right to touch your bum because they believe because you are a girl, you are meant to be with them.” [13]
Her testimony exposes the violent distance between constitutional protection and daily life. It demonstrates how belonging is tied to physical safety, justice, and the ability to exist without constant threat. Law alone cannot bridge this gap when communities remain unsafe.
Conclusion
South Africa demonstrates both the necessity and the limits of law. Legal recognition affirms the legitimacy of queer and trans lives, but rights that remain unimplemented cannot protect people from violence. Belonging requires more than constitutional clauses – it demands material safety, social transformation, and institutional accountability.
Meaningful belonging emerges through activism, mutual care, and collective resistance. Queer and trans communities build the forms of safety that the state fails to provide. Globally, the gap between formal rights and lived realities persists. South Africa illustrates a universal truth: queer liberation will not come from law alone, but it cannot come without it.
Law must not only be written; it must be lived. And that requires sustained commitment from states, communities, and individuals alike.
A full-length version of this article can be obtained from the author upon request (contact details provided).
[1] Kelly-Ann Allen, Margaret L Kern, Chris S Rozek, Dennis McInerney and George M Slavich, ‘Belonging: A Review of Conceptual Issues, an Integrative Framework, and Directions for Future Research’ (2021) 73(1) Australian Journal of Psychology p. 87 et seq. <https://doi.org/10.1080/00049530.2021.1883409>.
[2] ‘Sex, gender and sexuality – Human rights issues in development cooperation’ (German Institute for Human Rights and Deutsche Gesellschaft für Internationale Zusammenarbeit, May 2019) p. 1 et seqq. <https://www.institut-fuer-menschenrechte.de/en/publications/detail/sex-gender-and-sexuality-human-rights-issues-in-development-cooperation>.
[3] ‘South African Court Ends Sodomy Laws’ (The New York Times, 8 May 1998) <https://www.nytimes.com/1998/05/09/world/south-african-court-ends-sodomy-laws.html>.
[4] ‘Parliament ordered to allow gay marriage’ (Mail & Guardian, 1 December 2005) <https://mg.co.za/article/2005-12-01-parliament-ordered-to-allow-gay-marriage/>.
[5] ‘Changing your name and gender in your identity document: the Alteration of Sex Description Act 49 of 2003’ (Gender DynamiX, archived 4 March 2016) <https://web.archive.org/web/20160304031744/http://www.genderdynamix.org.za/wp-content/uploads/2012/10/Act-49-English.pdf>.
[6] Amanda Martin, Amanda Kelly, Lisa Turquet and Sophie Ross, ‘Hate crimes: The rise of “corrective rape” in South Africa’ (ActionAid, 2009) p. 1 – 20 <https://web.archive.org/web/20120508000000/http://www.actionaid.org.uk/sites/default/files/doc_lib/hate_crimes_the_rise_of_corrective_rape_in_south_africa.pdf>.
[7] ActionAid, Hate Crimes: The Rise of “Corrective Rape” in South Africa (2009) <https://web.archive.org/web/20090320205134/http://www.actionaid.org/pages.aspx?PageID=34&ItemID=447>.
[8] Iranti, Data Collection and Reporting on Violence Perpetrated Against LGBTQI Persons in Botswana, Kenya, Malawi, South Africa and Uganda (Iranti, Januar 2019, aktualisiert Oktober 2019) p. 58 et seqq. <https://www.iranti.org.za/wp-content/uploads/2020/03/Violence-Report_36482.pdf>.
[9] Go2Africa, Rainbow Romance: Your Guide to Gay-Friendly Cape Town (Go2Africa, 2024) <https://www.go2africa.com/african-travel-blog/rainbow-romance-gay-friendly-guide-cape-town > accessed on the 2nd of June 2025./ Kimon de Greef, ‘The Unfulfilled Promise of LGBTQ Rights in South Africa’ (The Atlantic, 2 July 2019) < https://www.theatlantic.com/international/archive/2019/07/southafrica-lgbtq-rights/593050/>.
[10] GALA Queer Archive, ‘Home’ (GALA Queer Archive, Johannesburg, retrieved June 12, 2025) <https://gala.co.za/>.
[11] OUT LGBT Well‑being, ‘Home’ (OUT LGBT Well‑being, Tshwane) <https://out.org.za/>.
[12] Triangle Project, ‘About Us’ (Triangle Project, Cape Town) < https://www.triangle.org.za/about-us/ >.
[13] Nick Schönfeld und Julia Gunther, ‘Rainbow Girls: 10 Years of Protection and Prejudice’ (South Dakota Public Broadcasting, 1. November 2024) <https://www.sdpb.org/2024-11-01/rainbow-girls-10-years-of-protection-and-prejudice>.
