Written by: Daniela Ellerbeck, FOR SA Legal Advisor
Article source: JOY! Magazine
In an initiative to create an environment where every South African child can receive a basic education free from unfair discrimination, harassment, and bullying, the Department of Basic Education (DBE) has drafted guidelines for socio-educational inclusion of Diverse Sexual Orientation, Gender Identity, Expression and Sex Characteristics (SOGIESC) in schools. These guidelines are still in draft form and, at the time of printing, were not yet open for public comment. Once finalised, they will be for public schools’ consideration.
Non-binding recommendation
Important to note is that the guidelines are not Departmental policy. Rather, they are the Department’s recommendation to public schools about how to address issues surrounding sexual orientation and gender identity and how the school’s policy (if any) should look. Schools remain free to use their discretion.
Department’s engagement with FOR SA
The Department shared its draft version of the guidelines with FOR SA and subsequently met with our team at the end of 2022. FOR SA was also invited to make a written legal submission on the draft version of the guidelines at the end of January 2023.
Religious freedom concerns
FOR SA’s major concern, which we have expressed to the Department in both our meeting and submission, is that the draft version of the guidelines adopts a specific ideological position, namely that gender is a social construct, exists on a spectrum, and/or that it is ‘fluid’ (meaning that a person can choose to identify as the gender, or lack thereof, of their choice).
Protecting constitutional rights
The adoption of any specific ideology, to the exclusion of others, is contrary to the state’s obligation to respect, protect, promote, and fulfil all constitutional rights. It is also in conflict with the OGOD case, which established that public schools should be ideologically neutral places. As a result, FOR SA voiced its concern that the guidelines will inadvertently create a school environment that alienates, silences, and/or unfairly discriminates against learners and teachers who hold differing views or opinions, which should be equally welcomed and accommodated in public schools. It is therefore crucial that the guidelines both adopt a neutral position that reasonably accommodates everyone and give practical recommendations to schools to ensure that no learner (for whatever reason) is bullied, vilified, or intimidated.
The way forward
Parents with children in a public school will have a direct interest in these guidelines. The DBE has promised that there will be a full public participation process to allow for comment and input on the guidelines in early 2023. FOR SA will follow this process closely and notify the public when the guidelines are open for comment.
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Date published: 11/03/2023
Feature image: Image for illustrative purposes only. Artwork adapted from www.freepik.com
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