COMMISSION ON GENDER EQUALITY CHILDREN’S BILL [B70-2003]
10 August 2004
The Commission on Gender Equality (CGE) is an independent statutory body, established in terms of Section 187, Chapter 9 of the Constitution of South Africa, Act 108 of 1996.
Our mandate is to promote respect for gender equality and the protection, development and attainment of gender equality. The powers and functions of the CGE are detailed in the Commission on Gender Equality Act 39 of 1996. In terms of Section 11(1), the CGE must inter-alia evaluate any law proposed by Parliament, affecting or likely to affect gender equality or the status of women, and make recommendations to Parliament with regards thereto.
Section 7(2) of the Constitution compels the state to fulfil the rights stipulated in the Bill of Rights. Sections 9, 10; 11, 12, 14, 27 and 28 of the Constitution permits the State to the enact legislation promoting, equality, human dignity, life, freedom and security of the person, privacy, and access to health care in South Africa. The law of general application limits all these rights, to the extent that they are reasonable and justifiable in an open democratic society based on human dignity.
The CGE commends the Portfolio Committee on Social Development for the Children’s Bill, as it aims at consolidating the laws relating to the welfare and protection of children. This objective, acknowledges Section 25 of the Constitution, which provides for the rights of children. We acknowledge that issues relating to children, are broadly covered by the South African Human Rights Commission, and in light hereof, our submission will focus on the following issues, which are of primary concern to the Commission in respect of girl children:
SECTION 25 Children’s rights are entrenched in the Bill of Rights, which clearly states that the best interests of every child should be of paramount in every matter concerning the child. This therefore includes the child’s right and respect to bodily integrity, which includes issues around virginity testing, and health care.
The State is committed to gender equality, as evident from the Constitution. Sexual, social and cultural responsibilities are disproportionately borne by women and the girl-child. Section 25 provides that children should be free from violence, coercion, discrimination, intimidation and abuse, as this is essential in achieving gender equality.
SECTION 12 of the Constitution provides for freedom and security of the person, which right to includes the bodily and physical integrity.
SECTION 14 of the Constitution states that everyone has the right to privacy. Virginity testing as a practice, infringes these rights in the following respects:
This Bill does not protect the children in respect of the aforesaid rights, as it fails to provide for non-disclosure of the virginity testing results to someone else. Children should be protected against the disclosure of their virginity status to someone else.
SECTION 36 of the Constitution provides for the limitation of rights in the Bill of Rights.
In considering less restrictive means, Parliament is entitled to have regard not only to constitutional rights, but also considerations of cost, practical implementation, and the prioritisation of certain social demands. Alongside the issue of less restrictive means, is the extent of the infringement, and the strength of the justification. The level of justification required to warrant a limitation upon a right depends on the extent of the limitation. The more invasive the infringement, the more powerful the justification must be.
The following three key issues need to be considered in evaluating the validity of the limitation.
SECTION 39 of the Constitution provides that the Bill of Rights should be interpreted in a manner which "promotes the values which underlie an open and democratic society based on human dignity, equality and freedom".
The preamble of the Constitution, speaks of the need to "heal the divisions of the past and establish a society based on democratic values, social justice and fundamental human rights. It invites South Africans to actively engage with the values and rights enshrined in the Constitution, to build a new democratic society, and to "improve the quality of life of all citizens" and to "free the potential of all persons".
This Bill allows for virginity testing, which fails to heal the gender inequalities of the past, and now makes the vulnerable girl child, even more vulnerable.
The Promotion of Equality and the Prevention of Unfair Discrimination Act No.4 of 2000, gives effect to Section 9 of the Constitution, which aims at preventing and prohibiting unfair discrimination, as well as to promote equality, and eliminate unfair discrimination. Section 8 of this Act, prohibits unfair discrimination on the grounds of gender. Section 8(d) prohibits any practice, including traditional, customary or religious practice, which impairs the dignity of women, and undermines equality between women and men, including the undermining of the dignity and well-being of the girl child.
Virginity testing, clearly discriminates on the grounds of gender (See arguments below), and impairs on the dignity and well-being of the girl child. The provision of virginity testing clearly disregards the dignity and well being of the girl child, as the harm that it causes the girl child, clearly outweighs the intended benefits. Virginity testing subjects, and exposes vulnerable girl children, to an invasion of their privacy, degrading treatment, impairs their dignity, stigmatisation, sexual abuse, and even diseases such as HIV/AIDS. Due to the fact that virginity testing is mostly practiced on girl children, clearly discriminates, and undermines girl children.
CLAUSE 12: VIRGINITY TESTING
Clause 12 of the Bill, deals with harmful social and cultural practices.
Clause 12(5)(a) of the Bill provides for virginity testing. No consent is required to be subjected to virginity testing. This clause however gives children the right to refuse to be subjected to virginity testing.
Clause 12(5)(b) states that every child has the right not to be subjected to virginity testing.
The following provisions with regarding virginity testing are of great concern to the Commission:
CULTURE: It is difficult to say whether virginity testing could still be regarded as part of culture. Upon close examination, the revival of this practice was a reaction to social ills, of which HIV/AIDS was paramount. If a practice was revived, the claims were usually made that it was for cultural purposes. The idea that virginity testing was cultural, had to be challenged for a number of reasons. This practice contravenes the Bill of Rights, as it was biased against girl children. More girls than boys are subjected to virginity testing, even though the results are inconclusive, and unreliable, as other events besides penetration could tear a girl’s hymen. The revival of discriminatory practices in the name of Culture, undermines the Constitutional Bill of Rights.
GENDER INEQUALITIES: Virginity testing disproportionately affects women and the girl children. The marking of these women, make this vulnerable group, even more vulnerable, as they are now exposed to a greater risk of rape, and other forms of abuse. Virgins have also become a commodity in the trade of child trafficking.
‘The revival of old-style local practices to address a modern global pandemic such as HIV/AIDS, will do more harm than good, as long as marked gender inequalities, sexual violence and hegemonic, masculine sexualities are left unchallenged.’
Sexual offences are highly gendered, and they are a cause of disempowerment and inequality. Dealing effectively with them, and their consequences, is important for achieving gender equality. The primary victims of sexual offences are women. Virginity testing exposes victims of sexual crimes, and on the other hand, the marking of virgins does not afford protection to girl children against sexual crimes. Victims of sexual offences are known to suffer abandonment, rejection and violence, on disclosing their identity. The practice of virginity testing will in all likelihood further victimise the girl child victims of sexual offences, who are themselves already suffering from the consequences and trauma of offence. It is against this backdrop that the practice of virginity testing should be analysed, especially in respect of its implications for the girl child.
HYGIENE: There has been shocking reports of virginity testing, which include women being examined unhygienically, and women who stuff meat and lace into their virginas, to fool the testers. Virginity testing is generally conducted in public areas, such as community Halls, schools, and sports fields.
HIV/AIDS: The CGE however does not support virginity testing as an answer the HIV/AIDS pandemic, as there are other non-intrusive ways of addressing the issues of HIV/AIDS. The gender power imbalances needs to be addressed, and this could be through a comprehensive education campaign around issues of sexuality.
FEMALE GENITAL MUTILATION
The CGE supports Clause 12(3), which outlaws female genital mutilation, and female circumcision as a cultural practice. We feel that this is important, and support the inclusion of this Clause in the Bill, especially since there has not been any medical support for this practice to date.
The CGE feels that this clause may to some extent seek to give effect to the standards stipulated in Clause 11.
We believe that this Bill will assist in defining the rights and responsibilities of children, as well as to consolidate the laws relating to the welfare and protection of children. It is not possible to lay down an absolute standard or test for justification of an infringement of rights. One has to apply these principles, and weigh all these factors together. In doing so, leads to the conclusion that the proposed provisions in Clause 12, with regard to virginity testing, will fail to meet the requirements of Section 36 of the Constitution.
In conclusion, the CGE does not support the practice of virginity testing. At the same time, we do recognise the importance of the rights of individuals to practise their culture, but emphasise that this should be in accordance with the Constitution.
DRAFTED & PREPARED BY SURAYA WILLIAMS