On August 16, 2022, 16-year-old Tiro Moalusi was mocked in class by his teacher because of his sexual orientation.
Later that day, he took his own life.
This act was, most likely, the final straw of Tiro’s long-suffering experience of what is known as “queerphobia”.
Tragically, Tiro’s experience of queerphobia is not isolated. And he is not the only learner to have committed suicide as a result.
Possibly the greatest tragedy of all is that these queerphobic attacks seem to continue unabated, and without significant consequences for the perpetrators or the schools and education departments that are responsible for protecting the basic human rights of learners. To date, there has been no appropriate punishment, no notable fight against queerphobic bullying, and no meaningful recourse for victims.
The public schooling
environment no place to hideA typical public school is co-educational and, from school uniform to bathroom allocations, there is no provision for transgender or queer learners, and certainly no consideration for those still discovering their gender and/or sexual identity.
Research has shown that educators are often the perpetrators and, even if the attack doesn’t come directly from them, they either turn a blind eye, or possibly even encourage further bullying. Regardless, a lack of action makes many educators and school leaders complicit in the perpetuation of a broader queerphobic school culture.
Queerphobia has a widespread and diverse impact:
l It creates a hostile culture in a place that is meant to be a safe space, especially for adolescents who are developing their self-identity;
l It fuels violence and hate crimes; and
l Ultimately, this environment means that many learners skip school, or drop out entirely.
Inadequate legislation and policy provisions
While the queer community needs both recognition and acceptance from a social perspective, the legal mechanisms must be in place as a fundamental baseline to protect this minority (and vulnerable) group. This is, of course, even more urgent in the case of minors.
The law must be explicit about its objectives to ensure that the basic human rights of queer learners are not only recognised but upheld and protected by judicial and schooling systems that are also educated and empowered to enforce these laws.
The Children’s Act, the Promotion of Equality and Prevention of Unfair Discrimination Act (Pepuda) and SA Schools Act are just some of the laws in place that ought to effectively protect queer learners in schools. While these laws provide for generic protection against discrimination, they are outdated and fail to properly consider the diversity of transgender identities and sexual orientations. As a result, they do not provide effective protection.
Often, queer children exist within other minority and/or vulnerable groups. In a society where majority groups are the main subject of protection by the law, there is an urgent need for explicit laws designed for queer children, otherwise, their oppression is at risk of existing under the radar.
Very often, the simple recognition of minorities and their protection, depends on public advocacy and demand.
This was evident in Gory v Kolver where the codified protection of a spouse was readily applicable to heterosexual spouses and was only recognised to apply to homosexual permanent life partners too after a homosexual partner challenged the scope of the protection in court.
Clear legal sanctions against queerphobia in schools needed Public apologies are not enough, there needs to be real legal rehabilitation and punishing consequences for this form of bullying and gross violation of children’s rights. First and foremost, South Africa requires legal mechanisms that consider (and enforce) adequate and just recourse for mistreatment of queer and queer-gender learners. Only from this baseline can we move forwards to build a culture of respect where queer learners are protected within the schooling system.
Legal mechanisms, whether through enactment of new laws or amendments of the existing relevant ones, must include rehabilitation and sanctioning measures so that even those who do not want to recognise queer learners or accept the legitimacy of their identity, will at least tolerate and treat queer learners with respect.
Hand-in-hand with this judicial responsibility, is the role of the South African Schools Act (Sasa). Sasa must put pressure on schools to protect learner identify and encourage and celebrate diversity. It should be the mandated responsibility of educators and school governing bodies to protect queer learners and build a culture of tolerance and respect.
The law must always be proactive when it comes to the protection of children. And we need action now before we lose another child like Tiro to unjustified intolerance and hate.
*This article first appeared in the Daily Maverick. The author has granted Mmegi express permission to run it as well
