On 16 August 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 hide
A 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:
- 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;
- It fuels violence and hate crimes; and
- 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.
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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.
Here are a few suggestions that could be considered:
- Higher learning institutions must be held liable for graduating teachers (and sending them into the schooling system) without proper education on the transgender and queer community and what it means to be a young queer or transgender person in the schooling system. This should include training around language and terminology, and, more generally on how to conduct themselves with respect to the protection of queer learners’ rights, especially their rights to inclusive quality and equitable education. This liability must bear effective legal sanctions against the institution;
- Schools must be held liable for queerphobic conduct by their employees;
- Schools must be held liable and legally sanctioned for failure to effectively act against any acts of queerphobia;
- Schools must be legally sanctioned if they do not implement reasonable measures to prevent queerphobic bullying;
- School disciplinary codes must explicitly include recourse for learners who perpetrate or perpetuate queerphobia within the school premises (regardless of whether this takes the form of verbal or physical abuse). These consequences should include possible expulsion; and
- Discipline against educators (including student educators) and other school employees should also include being fired, or having their teaching licences suspended.
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. DM
One immediate step that would be very helpful is the adoption of guidelines to educate the educators: It is not too late to make your views known to the Minister of Basic Education in support of the Guidelines for the socio-educational inclusion of Diverse Sexual Orientation, Gender Identity, Expression and Sex Characteristics (SOGIESC) in schools.
There isn’t a formal comment process or time because these are guidelines and not a proposed policy. People working for this are clear that while the guidelines aren’t perfect, they will really help.
And so yet again you want to punish people into submission, and then wonder why you are not seeing a “culture of tolerance and respect”. It will all depend on just how far this punishment will go. Firing and expelling people for lets say using a wrong gender pronoun will not in any way add to this, and will probably achieve the opposite.
Then of course one needs to question if it’s ok to punish a bully if his/her target is queer, yet not bother if they aren’t? What about if the bully is queer? Are we now going to expell some kids and ruin their entire future for making fun of someone, even if it is their gender?
Better would be to develope a system that protects all which includes a provision for queer people, yet handled like all other pupils of all genders, rather than another set of diversity rules that will merely create situations that will unfairly judge and punish a majority when these rules undoubtedly will create absurd situations, similar to what we have seen for other diversity regulations, like a teacher not being able to even quote a English word that historically has caused pain from a book in the correct context without being fired.
We need to tread carefully here so the cure to the problem doesn’t become a even bigger problem itself.
“…unfairly judge and punish a majority…” No, it’s only the bullies and educators that do not enforce anti-bullying measures who will be punished.
The origin of the problem is interpretations of the Old Testament and similar archaic material. How will you ever win whilst that remains?
The suggestions offered place a huge burden on schools and those they employ. This makes sense only as part of a broader, community/society-wide effort. Otherwise inner conflict and turmoil arises within the children in particular, but also the teachers, who are expected to behave one way at school, but return to families and communities where opposite positions are prevalent. Instead, a highly leveraged effort involving religious and traditional leaders would be more effective.