Lesbian Married Couple Battle South Africa’s Homophobic Dept. of Home Affairs Over Spousal Vis

Source: Autostraddle, 10/03/2018

Binational lesbian married couple Wendy Kessman, from the United
States, and Nomfundo Ngidi, from South Africa, have been dealing with
multiple complicated setbacks from South Africa’s Department of Home
Affairs over spousal visas, in yet another example of same-sex
couples being discriminated against by the South African government
despite marriage equality being legalised in November 2006.
The couple, who have been together since 2014, applied for a spousal
visa for Kessman soon after their marriage in early 2017. Their
application had been initially rejected as Home Affairs had claimed
that Kessman had to return to the United States to apply. This claim
contradicted earlier advice from Home Affairs that Kessman could
apply for a spousal visa while in South Africa, following a 2016 High
Court ruling challenging previous rules ordering foreign spouses to
apply for and await decisions on spousal visas outside the country as
it was deemed to be inconsistent with the Constitution.
In December 2017, after appealing the initial rejection, Kessman and
Ngidi were surprised to find that their application for a ‘study
visa’ was rejected, given that they didn’t apply for a study visa.
The couple has received support from South African LGBTI groups and
media coverage by MambaOnline, a South African LGBTI lifestyle
magazine to escalate their case. However, their case may be
unsuccessful, based on a phone call from Home Affairs in the past
week saying their application will be rejected again.
“It was a horrible call,” said Kessman, speaking to
Autostraddle. “[The representative from Home Affairs said] we don’t
understand the law, and what we were trying to do was not allowed
because the people who our case’s precedence is based off of had
different circumstances.” The couple that filed the lawsuit in the
2016 High Court ruling were heterosexual and had four children.
“It’s become apparent throughout that they don’t see us as a family,”
Kessman adds.
South Africa’s Department of Home Affairs has come under fire from
LGBTQ activists and community members for discriminating against
LGBTQ people in their processes. They have rejected calls to remove
provisions allowing marriage officers to refuse to marry same-sex
couples, though activists were successful in stopping Home Affairs
from forcing married trans people to divorce to obtain a change in
their gender marker on documentation.
“There is a lot of anecdotal evidence that suggests that homophobia
and transphobia plays a role in the process of trying to regularize a
person’s stay,” says Matthew Clayton, Research, Advocacy and Policy
Coordinator at The Triangle Project, which provides health, support,
and other professional services to South Africa’s LGBTI community,
such as clinics, counseling, and legal support for survivors of
violence. Speaking to Autostraddle, Clayton noted that there is a
lack of data on acceptance and rejection rates of spousal visas based
on sexuality, and also points out that the issue seems to affect
people regardless of country of origin or resources: “I know of lots
of people from the US and UK, people who have the resources to hire
lawyers and who have employers helping them who sometimes still are
not able to stay in South Africa.”
South Africa has had a tenuous relationship with LGBTI people;
despite being one of the first countries to call for protection of
LGBTI rights, violence and discrimination is rife, especially towards
Black lesbians and trans men.
“Currently the laws in South Africa are very progressive and
affirming of LGBTI, but the general population have very different
ideas,” says Kim Lithgow, founder of PFLAG South Africa, in an email
to Autostraddle that also cited a survey stating that 80% of the
South African population consider homosexuality to be “always
wrong”. “The staff at Home Affairs are known to ‘lose papers/forms’
or drag their feet where possible. It all depends on the branch that
you go to. Home Affairs have acknowledged that only a fraction of
branches are willing to assist LGBTI in their affairs. It is part of
a larger problem in South Africa.”
“The gap between rights and implementation of rights is significant,”
adds Kessman. “We are proud of [the] rights we have as an LGBTI
married couple, but if they are not implemented they are worthless.
Just because you have rights does not mean you have justice.”
The visa limbo has caused significant stress to Kessman and Ndigi’s
life, affecting their ability to work, study, or even undertake basic
life skills that many take for granted. “It impacts everything â€` I
can’t work, drive, open a bank account, leave the country, go to
school, etc,” says Kessman, a researcher of LGBTI lived experiences
in the region; she has been accepted for a PhD program based on her
research but needs a visa to commence.
Support from family, friends, and community members (including civil
rights attorneys, media, politicians, and advocacy organisations), as
well as a writers group founded by Kessman are keeping the couple
going. “Doing this kind of work allows for some freedom, and I keep
in mind I don’t need a visa to write. But still the income is a
consistent issue, we need to sustain ourselves through this
emotionally and financially draining process. We need those that are
willing to take a calculated risk on us, hire us, fund us. It doesn’t
just contribute to documentation â€` it ensures we sustain this fight.”
Kessman and Ngidi are currently awaiting a written rejection from
Home Affairs so they can escalate their case to the High Court,
hopefully in the next few months. Due to the contradictory advice and
long process times from Home Affairs, Kessman has already overstayed
her visitor’s visa, which means she isn’t able to leave the country
without being disallowed from returning.
“We have to stay and challenge it, and it is our right to,” she
says. “We didn’t have a choice to overstay or not, and now we have no
choice as to see it all the way through.”