South Africa is recognized as a frontrunner in protecting the rights of both “gender refugees” and asylum seekers. The term “gender refugee” refers to “people who can make claims to refugee status, fleeing their countries of origin based on the persecution of their gender identity.”[1] A gender refugee has likely faced persecution or violence in their country of origin because “their gender identity and birth-assigned sex [are] perceived as incongruent.”[2] Many gender refugees identify as Transgender. As a result, gender refugees will often migrate to South Africa hoping to access greater legal protection and community acceptance.[3] Hope for legal protection comes from South Africa’s constitution, which “prohibits discrimination on the grounds of sexual orientation, gender, race, ethic or social origins.”[4] Furthermore, since the passing of the Alteration of Sex Description and Status Act in 2003, South Africa’s reputation as a gender-queer safe haven has only grown.[5] As a result, “South Africa seems to be hailed as the epitome of an environment that is attractive to live in safely.”[6]
Yet, B Camminga’s powerful ethnographic novel Transgender Refugees and the Imagined South Africa: Bodies over Borders and Borders over Bodies provides a detailed description on the authentic gender refugee experience.[7] In their book, Camminga conducted a series of interviews with gender refugees and documents their continuing struggle(s). Ultimately, South Africa’s protective and accepting reputation appears to be but a mirage for gender refugees seeking asylum; “queer, LGBT, transgender and gender diverse persons who come to South Africa from other parts of the continent have misguided expectations.”[8] Gender refugees continue to battle common-sense notions of gender, struggle to pass, fear community surveillance and battle a lack of legal protection after immigrating to South Africa.
I. Common-Sense Notion of Sex/Gender and Passing:
In both their country of origin and South Africa, many gender refugees find themselves fighting “common-sense notions” of sex and gender. Common sense notions of sex and gender reinforce the idea that physical/biological anatomically is synonymous with an individual’s gender identity. Many of Camminga’s interviewees battled common-sense notions early in life and recalled how peers, teachers, and family members reacted when their actions or behaviors did not conform with their sex (or “common-sense” gender).[9]
Gender refugees continue to battle a commonsense notion of gender during their initial stop at South Africa’s Refugee Reception Office “RRO.” Upon their arrival in South Africa, migrants must locate the RRO and choose to stand in one of two lines – “male” or “female.”[10] The choice becomes problematic if a refugee does not identify within the binary or if the “sex” marker on their official documents do not match their presenting gender. Because of this “sorting process,” many individuals feel confused and vulnerable almost instantly during the official migration process to South Africa.
“Passing” is when an individual perceived as a part of the gendered group they identify as. Although some Trans migrants are able to successfully pass, others are not. Simultaneously, Trans migrants are often in close proximity to members of their country of origin at the RRO and experience constant surveillance. As a result, Trans migrants often have to revert back to dressing and performing as their perceived, “common-sense” sex/gender.[11] Those who are unable to pass, unsurprisingly, often attempt, to remain “off the radar” from institutions (like the RRO) and go about the migrant process illegally.[12]
II. Human Rights, Home, and Security:
Hope of legal protection is what attracts many gender refugees to South Africa from other African countries.[13] Although nondiscrimination and equal protection laws are unassailable, many Trans refugees experience a lack of enforceability. Gender refugees “cross the border, and have every right to do so, but that does not mean that the state or South African society . . . . has to allow them a notion of home or a recognizable life.”[14] Camminga theorizes that gender refugees struggle to invoke their rights because legal protection cannot be obtained without a community.[15] Trans migrants experience a loss of community time and time again, first in their country of origin and then again upon their arrival in South Africa. This outright rejection of the larger community is referred to as “nothing but human”; Trans migrants are left nationless, homeless, without an authentic identity or community and lacking their basic human rights.[16] Ultimately, “the betrayal is visceral for South Africans who . . . . become outsiders, existing at the margins where legislative protections are as tangible as catching fistfuls of mist.”[17]
Lack of community further isolates a Trans migrant back into the borderland of limbo and unbelonging. The need for home and community was so important to some of Camminga’s informants that they continuously attempted to reintegrate into their community even after experiencing violence and hostility.[18] The constant threat of death and harm is ever persistent for many Trans migrants. Heartbreakingly, “a recent survey by South African rights group Out found that half of Black respondents knew people who had been killed because of their gender identity.”[19] Constant fear from gender refugees result in their “struggle to find safe housing, secure employment, or access social, health, or justice services.”[20] Finding and maintaining a job also becomes nearly impossible for a gender refugee; because of this, many Trans migrants are forced into sex work.[21] Lack of income and opportunity also drives many Trans migrants to shelters that are unprepared to handle gender nonconforming individuals.[22] The actuality of South Africa for gender refugees “is structured very much like the countries most asylum seekers have just fled.”[23]
III. Conclusion
In many ways, “the harsh reality is that South Africa betrays its image of being a utopia for those who occupy the margins of society.”[24] Upon their arrival in South Africa and first encounter at the RRO, a gender refugee immediately battles the reinforcement of binary and “common-sense” notion of sex and gender. Gender refugees also experience a lack of enforceable rights, livelihood, and shelter as a result of the rejection they experience from their new and old community.
[1] Lethabo Mailula, Bodies and Borders: Living As a Transgender Refugee In South Africa, AMAKA (Mar. 30, 2021), https://amaka.studio/explore/articles/bodies-and-borders-living-as-a-transgender-refugee-in-south-africa.
[2] Id.
[3] See generally B Camminga, Transgender Refugees and the Imagined South Africa: Bodies over Borders and Borders over Bodies (Palgrave Macmillan Cham, 2019).
[4] Mailula, supra note 1.
[5] Id.
[6] Id.
[7] Camminga, supra note 2.
[8] Mailula, supra note 1; See also UCLA LAW, LGBTQ+ Asylum Seekers in South Africa: A Review of Refugee Status Denials Involving Sexual Orientation & Gender Identity (Apr. 2021) https://law.ucla.edu/sites/default/files/PDFs/Promise/Annual_Symposium/2022_Symposium_SOGI/LGBTI%2B%20Asylum%20Seekers%20in%20South%20Africa.pdf.
[9] Camminga, supra note 2.
[10] Id.; See also UCLA Law, supra note 8.
[11] Id.
[12] Id.
[13] UCLA Law, supra note 8.
[14] Mailula, supra note 1.
[15] Camminga, supra note 2.
[16] Id.
[17] Mailula, supra note 1.
[18] Camminga, supra note 2.
[19] UCLA Law, supra note 8.
[20] Id.
[21] Camminga, supra note 2.
[22] Id.
[23] Mailula, supra note 1.
[24] Id.
