COMPARATIVE ANALYSIS OF AFFIRMATIVE ACTION PROGRAMME FOR LGBTQ COMMUNITY IN UNITED STATES, AUSTRALIA, AND SOUTH AFRICA BY - SOUMYA SHARMA
COMPARATIVE ANALYSIS OF AFFIRMATIVE
ACTION PROGRAMME FOR LGBTQ COMMUNITY IN UNITED STATES, AUSTRALIA, AND SOUTH
AFRICA
AUTHORED BY - SOUMYA SHARMA
ABSTRACT
In this article, affirmative action
laws for the LGBTQ community in the United States of America, Australia, and
South Africa are compared and contrasted. This article makes a significant attempt
to discuss about the attrocites faced by this community in the respective
regions and to further evaluate what happened to improve their situation little
or not so little. Thereby, this article looks at each nation’s legislative
framework for affirmative action and evaluates how well these practises promote
equality for LGBTQ people. The writer examines the origins and development of
affirmative action policies for the LGBTQ population in each nation, as well as
the difficulties and restrictions these laws confront. The article’s conclusion
provides insights into how affirmative action laws in these nations differ from
one another and are influenced by preexisting societal and cultural norms while
also trying to find an “ideal country” that has the best approach towards
affirmative action program for LGBTQ community.
Keywords: Affirmative Actions, LGBTQ community, USA, Australia, South Africa.
INTRODUCTION
Both legal experts and philosophers
have studied affirmative action, justice, and equality in great detail for more
than a decade. Many arguments have been made in favour of and against
affirmative action, but it does not seem that a synthesis that properly integrates
the philosophical and constitutional components of the issue has arisen.
Nonetheless, one must consider the fundamental idea of equality in order to
understand the right connection between affirmative action and justice. In
fact, from the time of the Greeks, justice has been equated with equality[1], and the equal protection provision provides the
concept of equality a legal status. Affirmative action would likely conform to
the principles of equality and the standards of the provisions provided for
equality in the constitution if philosophy can show that it does so. Yet,
because equality has become such a widely accepted moral and political ideal,
the phrase’s prescriptive meanings have grown significantly, seemingly robbing
it of most of its utility as a descriptive term[2].
So, it is accurate to say that
affirmative action refers to laws and initiatives intended to advance equality
of opportunity and lessen prejudice in fields including politics, employment,
and education. These laws seek to redress the systematic discrimination and
historical injustices that women, people of colour, and people with
disabilities have historically and still experience today. These actions thus
can take many various forms, such as disadvantaged people’s assistance
programmes, preferential employment or admissions policies, and focused
outreach and recruitment campaigns. Depending on the situation and the
objectives of the organisation or institution, several policies and programmes
may be implemented.
Affirmative action can be crucial
in the case of the LGBTQ community since LGBTQ people have traditionally
experienced prejudice, harassment, and exclusion from a variety of spheres of
life. Several situations, including the workplace, housing, and access to
healthcare, might result in this prejudice. By encouraging equal access for
LGBTQ people to opportunities in school, employment, and other areas,
affirmative action policies and initiatives can aid in addressing these
structural disparities. This can involve actions like anti-discrimination laws,
focused recruitment and outreach campaigns, and LGBTQ support systems.
Affirmative action is a crucial strategy for combating the historical and
on-going discrimination against the LGBTQ community, and it can support the
development of more welcoming and egalitarian workplaces where LGBTQ people can
thrive.
Affirmative action policies for the
LGBTQ community could significantly affect how LGBTQ people are represented and
given chances, as well as more general society views and practises around LGBTQ
concerns. Yet, the success and results of affirmative action programmes will
depend on how they are implemented specifically and in what context.
AFFIRMATIVE
ACTIONS- DEFINED
Affirmative
action is a complicated and diverse subject that has received much research and
discussion from academics from many different fields. Affirmative action is
frequently claimed to have beneficial impacts on both targeted and non-targeted
groups, although these effects are dependent on a number of variables,
including the particular policies being implemented and the context in which
they are implemented. It is also suggested that certain policies in particular
areas should balance the trade-off between quality and fit in order to more
effectively promote diversity while maintaining high standards of quality. This
is because affirmative action can help promote diversity, but it may also have
negative effects on the quality of candidates selected for certain positions.
A
small number of nations have implemented affirmative action to reduce
discriminatory practises against some historically marginalised populations.
Affirmative action is a system of preferential treatment for minorities and
women that aims to make up for their lack of development possibilities as a
result of historical and on-going discrimination in the United States[3].
Affirmative action is a strategy used by some nations, such as India, to
address underprivileged populations.[4]
Affirmative
action, according to Mkhwanazi[5],
is a purposeful and long-term intermediate strategy designed to improve the
skills and potential of underprivileged groups so they can compete on an equal
basis with those who benefitted from the apartheid system. Affirmative action
is viewed as a collection of policies intended to proactively address the
disadvantages that certain groups in the community have historically faced.
Affirmative
action can be implemented in a variety of different ways; it is vital to
highlight this right away. Affirmative action is not always a single policy or
tactic.[6]
According to Khoza[7],
affirmative action is a type of positive discrimination intended to address
inequalities brought about by years of oppression. Whether you call it
affirmative action, black advancement, equal opportunity employment, or
strategic resourcing, it has gone by numerous names at various points in time.
The need to address unfair hiring practises still has to be addressed.
Another
crucial element in regard to affirmative action policies is the idea of
equality. The “equality” axis around which affirmative action revolves is noted
in the Green Paper on Affirmative Action.[8]
Nonetheless, the idea of affirmative action cannot replace the idea of merit
since to do so would unfairly deny others of opportunities that are their due.
The ultimate goal is to perfect and realise this ideal of equal opportunity and
equality.
Further,
the affirmative action is used to promote employment equity in the workplace,
which is one of its key goals. Such steps are taken to make up for historical
inequalities. It acknowledges that there exist differences in employment,
occupation, and income within the country’s labour market as a result of
apartheid and other discriminatory laws and practises. It also acknowledges
that simply removing discriminatory legislation will not be sufficient to
address such inequities because they result in such severe disadvantages for some
groups of individuals.
Affirmative
action is also referred to as “preferential treatment” or “protective
discrimination” in India. Because it entails discrimination in favour of those
who, up until recently, had themselves been the targets of discrimination, it
is known as reverse discrimination[9].
Reverse discrimination can have various meanings to different people. The
expression, which is only used in circumstances where the favoured groups are
given absolute preference, is sometimes accused of being prejudiced.[10]
In
a nutshell, policies that expressly grant preferences based on membership in a
defined group are referred to as affirmative action[11].
Although these policies have a wide range of objectives, legal justifications,
applications, and recipient groups, the substantive variety of policies that
fall under its purview tends to cause the most uncertainty regarding the term's
definition. Affirmative action programme types can be loosely categorised into
five models: quotas, outreach plans, goals and deadlines, preference plans, and
basis non-discrimination.
Affirmative Actions for LGBTQ
Community
A
group of people who identify as lesbian, gay, bisexual, transgender, queer, or
questioning is known as the LGBTQ community. Although traditionally oppressed
and discriminated against, there has been a growing push in recent years for
LGBTQ acceptance and rights. Prejudice and discrimination are among the major
issues that the LGBTQ community must contend with. Many members of the
community experience discrimination, violence, and harassment when seeking job,
housing, medical care, or an education. Discrimination can have a detrimental
impact on one’s emotional and physical health.
The
LGBTQ community has made substantial progress in recent years towards greater
acceptance and equality despite these obstacles. To safeguard the rights of
LGBTQ people, many nations have made same-sex marriage lawful and established
anti-discrimination legislation. Also, there is now more LGBTQ representation
in politics and the media, which has aided in spreading understanding and
acceptance. It is crucial to understand that there are people from a variety of
backgrounds and experiences within the LGBTQ community. Certain members might
experience additional difficulties because of their race, ethnicity, religion,
or level of handicap. It is crucial to strive for greater inclusivity and
understanding while keeping these intersecting identities in mind.
Overall,
some parts of our culture values and appreciates the contributions made by the
LGBTQ community. We must keep fighting for the rights and welfare of all LGBTQ
people and working to create a world in which everyone is respected and treated
equally, regardless of their sexual orientation or gender identity. The range
and scope of affirmative action initiatives based on sexual orientation are
extremely constrained, and they typically appear within more general government
contracting criteria. Nonetheless, as demographics change and public perception
shifts as a result of civil rights triumphs for homosexual and lesbian people,
the implementation of sexual orientation-based affirmative action policies in
the employment and educational sectors becomes increasingly likely.
Programs
of affirmative action based on sexual orientation tend to be restricted in
availability and have only been implemented in a few number of jurisdictions as
part of a larger legal framework. Yet, the recent triumphs for LGBTQ rights[12]
make the possibility of expanding these programmes more conceivable. Hence,
those who are against the expansion of these programmes should think about the
tools at their disposal.
Affirmative
action is required for the LGBTQ community for a number of reasons. First of
all, LGBTQ people have traditionally experienced marginalisation and prejudice,
which has prevented them from accessing opportunities and resources.
Disparities in education, income, healthcare, and other sectors are the outcome
of this. Equal access to these resources and opportunities can be achieved with
the use of affirmative action. Second, LGBTQ people frequently experience major
difficulties at employment. Several LGBTQ people experience reduced salary and
job stability due to discrimination and harassment, which can also limit career
options and advancement. Affirmative action laws can aid in preventing unjust
workplace discrimination and ensuring that LGBTQ people have equal access to
career opportunities.
Last
but not least, affirmative action can encourage a greater awareness and
acceptance of the LGBTQ population. Affirmative action can serve to lessen
prejudice and discrimination against LGBTQ people by fostering more diverse and
inclusive settings in both education and the workplace. In general, affirmative
action measures are required for the LGBTQ community to address past and
present prejudice, encourage more access to opportunities and resources, and
foster greater acceptance and understanding.
AFFIRMATIVE
ACTIONS FOR LGBTQ COMMUNITY IN THE UNITED STATES, AUSTRALIA, AND SOUTH AFRICA
United
States of America
Many
affirmative measures are in place in the US to combat prejudice and advance
equality for the LGBTQ population. Although there has been progress, there is
still much to be done to guarantee full equality for all LGBTQ people. One such
step taken by the Federal Government of the United States was by passing the Hate
Crimes Prevention Act in 2009[13],
commonly known as the Matias Shepard and James Byrd, Jr. Hate Crimes Prevention
Act. The statute is named for two victims of hate crimes: James Byrd, Jr., an
African American man who was dragged to death in Texas in 1998, and Matthew
Shepard, a gay man who was killed in Wyoming in 1998. In addition to crimes
motivated by a victim’s race, colour, religion, or national origin, the Act
broadens the definition of a hate crime to include offences motivated by the
victim’s actual or perceived sexual orientation, gender identity, gender, or
disability[14].
The
legislation enables the Department of Justice to investigate and prosecute hate
crimes when the states are unable or unwilling to do so, and it grants federal
aid to state and local law enforcement agencies that investigate and prosecute
hate crimes. The passing of the Hate Crimes Prevention Act was hailed as a
significant breakthrough in the fight against crimes motivated by hatred
against members of the LGBTQ community and other oppressed groups. Nonetheless,
some detractors have voiced worries about possible inconsistencies with the
rights for free speech and religion. The Hate Crimes Prevention Act is
nevertheless a crucial instrument for preventing hate crimes and defending the
rights of underrepresented people in the US, notwithstanding these worries.
Later
in 2015, The Obergefell v. Hodges[15]
judgement from the Supreme Court was a landmark decision that made same-sex
marriage lawful across the country. Before this ruling, just a few states
permitted same-sex marriage, while others outright forbade it. Several same-sex
couples who had been denied the opportunity to wed in their home states brought
the lawsuit. The Supreme Court ruled 5-4 that same-sex couples are entitled to
the same legal recognition and rights as opposite-sex couples and that the
right to marry is a fundamental freedom protected by the Constitution.
The
Obergefell ruling was a crucial turning point in the struggle for marriage
equality and constituted a huge triumph for the LGBTQ community. The access to
benefits like social security, health insurance, and adoption, as well as other
legal rights and safeguards for same-sex couples, were also significantly
impacted. Despite the fact that many LGBTQ people and their allies welcomed the
ruling; some religious and conservative groups opposed it, claiming that it damaged
traditional notions of marriage and family. Yet, the Obergefell ruling
continues to be a pivotal point in the fight for LGBTQ equality and rights in
the United States.
Even
in the medical field, all nursing home residents, including those who identify
as LGBTQ, have their rights and wellbeing protected by the Nursing Home
Reform Act[16].
Yet, in nursing home settings, LGBTQ seniors may experience particular
difficulties and discrimination, which emphasises the significance of taking
this population’s needs into account when implementing the act. Residents’
rights to be free from discrimination, including discrimination based on sexual
orientation or gender identity, are specifically protected under the act.
Nursing homes must ensure that all residents are treated with dignity and
respect and must offer a safe, encouraging atmosphere free from bullying or
other forms of abuse.
Several
policies are being implemented in the United States to safeguard LGBTQ youth
too from harassment and discrimination in schools and higher education in order
to promote equality, in addition to the federal laws passed by the federal
government and various Supreme Court rulings upholding the rights of the LGBTQ
community. Although there is still much to be done to guarantee complete
equality for LGBTQ people in education, these rules mark a significant
advancement in the struggle for LGBTQ rights and equality. These policies
include some of those listed below.
Like
the introduction of thorough anti-bullying regulations that forbid harassment
and discrimination in schools based on sexual orientation and gender identity.
With the help of staff training, mechanisms for reporting and investigating
instances, and assistance for victims of bullying and harassment, these
policies mandate that schools take proactive steps to stop bullying and
harassment of LGBTQ students. Since no federal law governs the issue several
states have independently put in place other laws and regulations, like gender
identity protections and safe schools statutes, to safeguard the rights of
LGBTQ kids. While gender identity rights may compel schools to permit kids to
use facilities and engage in activities that are consistent with their gender
identities, safe school regulations mandate that schools take affirmative
actions to promote a safe and supportive learning environment for LGBTQ
students. One such example is of the state of California where The Safe
Place to Learn Act[17]
has been passed which has provisions for dealing with bullying and harassment
in educational settings. This law mandates that schools have particular
anti-bullying policies and procedures in place, as well as training for school
staff on how to identify and deal with bullying conduct.
Similar
to other states, New York’s anti-bullying law is called the Dignity for All
Students Act[18]
(DASA). All New York City public schools are required by law to create a
welcoming atmosphere free from bullying, harassment, and discrimination. The
Dignity Act mandates that schools establish plans for preventing and responding
to bullying behaviour, and it also includes requirements to address cyber
bullying. The law also stipulates that all school personnel must get training
on how to identify and deal with bullying, harassment, and discrimination.
Policies
have been put in place in various states to safeguard the rights of transgender
and gender non-conforming kids. The use of the student’s preferred name and
pronouns, and the provision of accommodations for transgender students who are
unable to use gendered facilities may all be mandated by these regulations.
Examples of such policies include:
·
The Gender Identity Non-discrimination Policy -
University of California[19]
·
Transgender and Gender Non-Conforming Student Policy -
New York City Department of Education[20]
·
Gender Identity Policy - California State University[21]
·
Gender Identity and Expression Policy - University of
Oregon[22]
Furthermore,
two federal statutes and regulations serve as the main sources of LGBTQ
healthcare rights in the US. First of all, the Affordable Care Act[23]
(ACA) forbids discrimination based on sex, which has been construed to include
discrimination based on gender identity and sexual orientation. Section 1557 of
the ACA[24]
is the specific provision that outlaws this. In other words, healthcare professionals
and insurers cannot deny LGBTQ people care or coverage or increase their
premiums or copays. Second, regardless of a person’s sexual orientation or
gender identity, The Health Insurance Portability and Accountability Act[25]
contain measures that safeguard the privacy of their health information.
Some
states have also passed legislation and regulations that give extra safeguards
for LGBTQ people accessing healthcare, in addition to these federal rights. For
instance, the LGBTQ Patient Bill of Rights in California[26]
forbids discrimination based on sexual orientation or gender identity in
healthcare settings and mandates that healthcare professionals undergo cultural
competency training particular to the LGBTQ community.
To
ensure that LGBTQ patients receive adequate and sensitive care, certain
healthcare organisations establish their own rules and guidelines. For
instance, the World Professional Association for Transgender Health[27]
(WPATH) offers instructions for medical practitioners on how to treat transgender
and gender non-conforming patients in a way that affirms their gender.
The LGBTQ Senior Bill of Rights[28], a set of
principles and suggestions intended to guarantee that LGBTQ seniors have access
to secure, welcoming, and inclusive care and services as they age, even takes
into account a unique issue for senior members of the LGBTQ community. LGBTQ
seniors should be granted a variety of particular rights and protections in
healthcare and social service contexts, according to the bill of rights. The
LGBTQ Senior Bill of Rights is a set of suggestions and best practises that can
direct the creation of policies and programmes to better assist LGBTQ seniors
in healthcare and social service settings, even if it is not a formal law or
statute.
There
are many other state laws, regulations and policies that the state within
itself implements for the protection of LGBTQ community. Moreover, there are
various organizations that pro-actively take part in this endeavour and takes
effective part in such affirmative actions.
Australia
Many
affirmative measures are in place in Australia for LGBTQ people to advance
equality and lessen prejudice. Nevertheless, like to the United States, there is
still work to be done to provide complete equality and protection against
discrimination in Australia. The Sex Discrimination Act 1984[29]
contains the federal anti-discrimination rules in Australia that forbid
discrimination based on sexual orientation, gender identity, and intersex
status. By virtue of this law, discrimination against a person is prohibited
based on:
·
Sex (including pregnancy and breastfeeding)
·
Sexual preference
·
Sexual orientation (including transgender status)
·
gender identity
A
variety of topics are covered under the Act, including work, education, access
to goods and services, lodging, and the supply of facilities. For instance, it
is illegal to reject a job application or fire a worker based on that person’s
sexual orientation, gender identity, or intersex status. A person may not be
denied access to goods or services, nor may they be treated less favourably
when receiving these goods or services. The Act also protects against
victimisation and sexual harassment and enables people to file complaints with
the Australian Human Rights Commission if they feel they have been subjected to
discrimination. It is significant to note that several Australian provinces and
territories also have anti-discrimination legislation that address related issues,
however they vary in terms of their reach and the safeguards they provide.
But,
in Australia, same-sex marriage became legal after a national postal survey on
marriage equality. The Marriage Amendment Act[30],
passed by the Australian government in 2004, established marriage as a union of
a man and a woman. Many attempts to introduce legislation to permit same-sex
marriage during the following ten years were unsuccessful. The Australian
Capital Territory approved same-sex unions in August 2015[31];
however, the law was later invalidated by the High Court of Australia[32].
The Australian government declared in August 2017 that it would conduct a
national postal survey on marriage equality. The survey was non-binding, so it
wouldn’t automatically alter the law, but its goal was to determine how the
people felt about the subject. Australians had the opportunity to participate
in the postal survey from September to November 2017 by mailing back a survey
form and marking whether they supported or opposed same-sex marriage
legislation. The Australian Bureau of Statistics reported on November 15, 2017,
that 61.6% of respondents had voted in favour of allowing same-sex unions[33].
The Marriage Amendment (Definition and Religious Freedoms) Act[34],
enacted by the Australian parliament on December 7, 2017, made same-sex unions
legal there. The legislation becomes operative on December 9, 2017.
Meanwhile,
The National LGBTI Health Strategy[35],
a comprehensive strategy to enhance the health and well-being of LGBTQ persons
throughout Australia, was created and released by the Australian Government in
2019. The policy attempts to address the particular health issues that LGBTQ
people and communities confront, such as prejudice, stigma, and a lack of
access to quality medical care. LGBTQ people and groups, medical experts, and
governmental organisations all worked together to establish the approach. It
contains a variety of programmes and suggestions, such as enhancing data collection
and research on LGBTQ health, increasing LGBTQ cultural competency training for
medical professionals, promoting inclusive and nondiscriminatory health care
services, and providing specialised assistance to LGBTQ people dealing with
mental health issues or domestic and family violence.
Further,
an effort called the Safe Schools Program[36]
further aims to lessen bullying and prejudice against children who identify as
LGBTQ in Australian schools. The program was created in response to the high
rates of bullying and harassment LGBTQ students endure, which can have a detrimental
effect on their mental health, general welfare, and academic achievement. The
Program gives teachers and schools the tools and assistance they need to make
their classrooms welcoming and safe for LGBTQ kids. This contains materials and
tactics for tackling bullying and prejudice in schools, as well as training and
professional development for teachers on topics relating to sexual orientation
and gender identity. Students and their families can also access materials
through the programme, including details on legal rights and support services.
As
a result of the demand for safe spaces and assistance for the LGBTQ population,
LGBTQ centres have sprung up in Australia. Due to historical persecution,
stigma, and marginalisation experienced by LGBTQ persons in Australia, there is
a need for support services and organisations. In 1973, Sydney became home to
Australia’s first LGBTQ centre. Its name is the Gay Counselling Service of New
South Wales, and it provided guidance and support to LGBTQ people who were
dealing with mental health problems or had encountered prejudice. Since that
time, a large number of other facilities and groups have popped up, providing
the LGBTQ community with a variety of services and support. In Australia today,
LGBTQ centres are crucial in encouraging social inclusion, fighting for equal
rights for LGBTQ people, and helping those in need. They also give LGBTQ
individuals who may feel alone or stigmatised a sense of belonging.
South
Africa
When
it comes to LGBTQ+ rights, South Africa is renowned for having some of the most
progressive legislation and laws in the entire globe. The first nation to do so
was South Africa, which included explicit safeguards for LGBTQ citizens in its
Constitution. Sexual orientation is a protected trait under the country’s Bill
of Rights[37];
hence discrimination based on sexual orientation is prohibited. Section 9 of
the Constitution of South Africa[38]
deals with equality and particularly outlaws discrimination on the grounds of
many characteristics, including sexual orientation. This clause states that
“the state may not unfairly discriminate directly or indirectly against anyone
on one or more grounds, including race, gender, sex, pregnancy, marital status,
ethnic or social origin, colour, sexual orientation, age, disability, religion,
conscience, belief, culture, language, and birth.” It also states that
“everyone is equal before the law and has the right to equal protection and
benefit of the law.” As a result, this clause offers safety for the LGBTQ community
in South Africa.
Furthermore,
a landmark court decision and following legislative action in South Africa made
same-sex marriage legal. The Marriage Act[39],
which defined marriage as a partnership between a man and a woman, was found to
be illegal and to have infringed the right to equality in 2005’s Minister of
Home Affairs v. Fourie[40].
The administration was given a year by the court to change the law to permit
same-sex marriage. The Civil Union Act[41],
which permits same-sex couples to enter into either a marriage or a civil
partnership, was passed in November 2006. According to the Act, same-sex
couples now have the same legal obligations and rights as heterosexual couples,
including the ability to adopt children and receive spousal benefits like inheritance
and health care. A big win for the LGBTQ community was achieved with the
legalisation of same-sex unions in South Africa, as well as globally. With the
legalisation of same-sex unions, South Africa became the first nation in Africa
and the fifth nation overall. The action also established a standard for other
nations in the area and around the globe to follow.
Additionally,
South Africa’s Promotion of Equity and Prevention of Unfair Discrimination
Act[42]
(PEPUDA) forbid discrimination on a number of grounds, such as sexual
orientation and gender identity, in a variety of contexts, including employment
and housing. Aiming to advance equality and halt unfair discrimination in all
spheres of South African society, PEPUDA was passed in 2000. In accordance with
the law, discrimination is “any act or omission, including a policy, law, rule,
practise, condition, or situation which directly or indirectly places burdens,
obligations, or disadvantages on, or withholds benefits, opportunities, or
advantages from, any person on one or more prohibited grounds.” In accordance
with PEPUDA, it is prohibited to discriminate against anyone based on their
sexual orientation or gender identity in a variety of settings, including
employment and housing[43].
Anyone who believes they have been the victim of discrimination may file a
complaint with the South African Human Rights Commission, which is in charge of
upholding PEPUDA’s requirements[44].
Based
on the 1999 Constitutional Court decision in the case of National Coalition
for Gay and Lesbian Equality and Others v. Minister of Home Affairs and Others[45],
South Africa’s healthcare-progressive legal framework is also very active in
recognising the rights of transgender and gender-nonconforming people. In this
significant decision, the court ruled that discrimination based on sexual
orientation is against the South African Constitution’s guarantee of equality
and is therefore unconstitutional. The Alteration of Sex Description and Sex
Status Act of 2003[46]
was put into effect by the South African government as a result of this
judgement, enabling transgender people to legally change the gender marker on
their identification documents, including their birth certificate, ID card, and
passport. In order to guarantee that transgender and gender nonconforming
people receive high-quality, non-discriminatory healthcare services, the
government has also created policies and standards for healthcare providers. To
guarantee that all people who need these therapies can get them, the Department
of Health, for instance, has published guidelines for the delivery of
gender-affirming operations and hormone therapy[47].
The right of transgender and gender nonconforming people to live their life in
a way that is consistent with their gender identification is also acknowledged
by the South African government. In all facets of their existence, including
their access to healthcare services, this entails defending their rights to
secrecy, dignity, and non-discrimination.
The National Health Act of 2003[48], which guarantees
everyone the right to access health services, including HIV prevention and
treatment services, provides for the provision of HIV testing, prevention, and
treatment services in South Africa that are accessible to all people,
regardless of their sexual orientation or gender identity. Everyone has the
right to obtain health services, including reproductive health care, according
to Section 27(1)(a) of the Act, and no one may be denied access to emergency
medical care. Further aiming to provide a comprehensive and coordinated
response to HIV, tuberculosis, and sexually transmitted infections (STIs) in
South Africa, the South African National Strategy Plan on HIV, TB, and STIs,
2017–2022[49].
It underlines the importance of offering everyone access to HIV testing,
prevention, and treatment services regardless of their sexual orientation or
gender identity. Guidelines for the management of HIV in the health services,
such as the provision of HIV testing, prevention, and treatment services, are
also included in the Department of Health’s 2015 Policy on Management of HIV
in the Health Services[50].
It highlights the significance of supporting the rights and dignity of all
people living with HIV and offering HIV care in a non-discriminatory manner.
The Department of Health’s Policy and Guidelines for the Implementation of
the Decentralized Model of Care for HIV, TB, and NCDs, 2019[51]
– are the last document to mention. This policy offers instructions for
implementing a decentralised model of care for non-communicable diseases, TB,
and HIV (NCDs). The goal of the policy is to make integrated, person-centered
care available to everybody, especially important demographics like LGBTQ
people.
Apart
from the above mentioned medical support made available by the South African Government,
there are various other non-profit organizations like The South African Depression and Anxiety Group[52] (SADAG), The Triangle
Project[53], OUT LGBT Well-being[54], etc. that have as their
primary goal giving LGBTQ people access to advocacy services, therapy, and
other resources for mental health. These programmes seek to advance the mental
health and well-being of all people in South Africa by addressing the
particular mental health needs of the LGBTQ community.
Conclusion
It is challenging to compare the affirmative actions taken
for the LGBTQ group in the USA, South Africa, and Australia because each nation
has different legal frameworks, social norms, and policies in place. In
addition, the LGBTQ community is not a homogeneous group and is subject to
various forms of prejudice and marginalisation depending on things like colour,
gender identity, and financial background.
Yet, all three nations have made progress in advancing LGBTQ
rights and combating discrimination. The USA has made strides towards
anti-discrimination laws and marriage equality, but it still has a history of
anti-LGBTQ policies and regulations. LGBTQ people still experience prejudice
and violence despite South Africa being the first nation in the world to
include provisions for sexual orientation in its constitution. Although
Australia has made strides towards anti-discrimination laws and marital
equality, the LGBTQ population still faces many difficulties, notably with
relation to healthcare access and mental health support.
In the end, it is critical to understand that when it comes
to affirmative action policies for the LGBTQ community, there is no one “ideal”
country. Each nation has particular advantages and disadvantages, and efforts
to advance equality and inclusion are continuous. However, it is also important
to note that India on the other hand has not yet executed any affirmative
actions for the LGBTQ community rather it’s judiciary only has as of now struck
down the provision of Section 377 of the Indian Penal Code[55] which has before
criminalized homosexuality[56]. Even the law brought up
by the Indian Legislature for recognizing Transgender is full of ambiguities
and vagueness[57].
However, the LGBTQ community is being supported by various state governments.
For instance, the Kerala government announced plans to create a transgender
justice board in 2018 to address challenges the transgender population is
facing[58]. Nonetheless, prejudice
and violence against LGBTQ people are still pervasive. There is a need for more
legislative and policy changes, as well as campaigns to raise awareness and
alter societal attitudes, to support equality and inclusion for LGBTQ people
even though the present central government of India is still opposing same sex
marriages in India on the traditional and out-dated ideas of an “Indian family”
to be a concept involving only biological man and woman.[59] In all, what actually will help is the
inclusivity of the society at large that accepts a person for who he or she is
not based on sex, religion, caste, class or for that matter any other
differentiation that divides one human from other.
[2] Rae, D., Yates, D., Harsanyi, J., Morone, J., & Fisse, C.
Equity and Justice, 10(4), PHILOSOPHY
& PUBLIC AFFAIRS, 283-345, (1981)..
[4] MARC GALANTER, COMPETING EQUALITIES: LAW AND THE BACKWARD
CLASSES IN INDIA (Oxford Univ. Press 1984).
[5]
MKHWANAZI, D. NEW BREED OF MANAGERS NEEDED IN A NEW SOUTH AFRICA (Human
Resource Management, 1993).
[8] COSATU. (1997). “A Conceptual Framework for Affirmative
Action and the Management of Diversity in the Public Service”. GG GN 851 of
1997, V(383), No. 18034.
[10] Brounaugh, R. (Ed.). (1978). “Authority, Equality, Adjudication, Privacy”. Philosophical Law,
V(II), 47.
[11] Kennedy, R. (1986). “Persuasion
and Distrust: A Comment on the Affirmative Action Debate”. Harvard Law
Review, 99, 1327, 1327 n.1.
[12]Geidner,
C. (2012, December 27). “The Seven States
(Or More) That Could See Marriage Equality in 2013”. BuzzFeed News.
[14] 18 U.S. Code § 249 (a)(2)
[19]University of California, Policies
Applying to Campus Activities, Organizations, and Students (PACAOS), Chapter 1,
Section 100: Nondiscrimination.
[21]California
State University, Executive Order 1097: Systemwide Policy Prohibiting
Discrimination, Harassment and Retaliation, Sexual Misconduct, Dating and
Domestic Violence, and Stalking Against Employees and Third Parties, and
Systemwide Procedure for Addressing Such Complaints by Employees and Third
Parties
[24] Forbids discrimination in covered
health services and activities on the basis of race, colour, national origin,
age, handicap, or sex (including pregnancy, sexual orientation, gender
identity, and sex characteristics).
[27] World Professional Association for Transgender Health
(WPATH). Standards of Care for the Health of Transsexual, Transgender, and
Gender Nonconforming People, version 7. 2011.
[34] Commonwealth of Australia. (2017). Marriage Amendment
(Definition and Religious Freedoms) Act 2017.
[36] Deane, M., and Kendall, E. (2017).
Final assessment on the success of the Australian Safe Schools Coalition. The
Western Sydney University.
[38]Republic
of South Africa. Constitution of the Republic of South Africa, 1996. Chapter 2:
Bill of Rights, Section 9: Equality.
[42] Republic of South Africa. Promotion of Equality and
Prevention of Unfair Discrimination Act, 2000 (Act No. 4 of 2000).
[43] Section
6(1), 7, 10(1), 13(1) of Republic of South Africa. Promotion of Equality
and Prevention of Unfair Discrimination Act, 2000 (Act No. 4 of 2000).
[44] Section 10
of Republic of South Africa. Promotion of Equality and
Prevention of Unfair Discrimination Act, 2000 (Act No. 4 of 2000).
[47] Department of Health. (2015). Standard Operating Procedures
for the Management of Transgender and Gender Non-Conforming Persons in South
Africa.
[49] South African National AIDS Council. (2017). South African
National Strategic Plan on HIV, TB and STIs 2017-2022.
[51]Department
of Health. (2019). Policy and Guidelines for the Implementation of the
Decentralized Model of Care for HIV, TB, and NCDs.
[52]South
African Depression and Anxiety Group. (n.d.). Home. Retrieved [10/3/2023] from
https://www.sadag.org/
[54]OUT
LGBT Well-being. (n.d.). About us. Retrieved [10/3/2023] from
https://www.out.org.za/about-us/
[59] “Central
government opposes same-sex marriage plea in Supreme Court; says Indian family
concept involves biological man and woman”, Bar & Bench, March 12, 2023