I am excited. Having been part of the crowd that brought you same-sex marriage, I get to attend my very first civil union ceremony in early January. But not only that, I also get to organise a bachelor’s party. To be frank, I haven’t a clue what to do. Does one follow “tradition” — drunken debauchery? Does one embrace the freedom of a clean slate and do something really edgy, really subversive? Or does one perhaps just do the expected and host something a little … well … just a little faggy? Tough call.

It’s just over a year since the Civil Union Act came into force and two since the Constitutional Court put Parliament on terms — formally to recognise same-sex partnerships in a manner that brings equal benefits and status. In terms of the adopted statute, whose constitutionality has yet to be challenged, civil union partners can choose one of two options: marriage or a civil partnership. Both options, legally speaking, carry the same consequences. Both options are open to moffies, letties and hetties. Both options carry the equal possibility of lifelong misery.

So there we have it — equality at the stroke of the deputy president’s pen.

(It should have been the president assenting to the new law, but he was — surprisingly — out of the country. Come this time next weekend, when Polokwane returns to its quiet self, he might be wishing he had not come back.)

So now that the gays can get married, what’s left of what Justice Edwin Cameron once referred to as the “shopping list” — a legal reform agenda identified by lesbian and gay activists in the early 1990s? Interestingly, not a whole bunch! Through a combination of litigation and legislative change, the legal landscape has been thoroughly transformed. Some of the outstanding issues — such as an equal age of consent and a gender-neutral definition of rape — are shortly to be effected when amendments to our sexual offences laws come into force.

But speak to anyone with a penchant for the same sex and you might hear a very different story. Sure, things have changed — radically, I would add. But hate crimes, police indifference, unfair discrimination and petty nastiness still abound. Sometimes, plain old ill-informed assumptions do the trick. Nothing intentionally mean, just problematic perceptions — like the bother over gay blood.

As part of its screening process, the South African National Blood Service (SANBS) requires prospective donors to fill in what it calls a self-exclusion questionnaire. Until quite recently, that form asked if the potential donor had — within the previous five years — engaged in “male-to-male sex”, without providing a definition of what constitutes sex. The drama queens among us — me included — complained. While there is no right to donate blood, the manner in which donations are accepted cannot violate constitutional rights and values. But it did.

So, after some consultation, the SANBS changed its form. Some of us had argued that the form needed to be much more specific, so that it identified — and excluded — all risky behaviour rather than simply assuming that fags, as a group, are at an elevated risk of HIV infection. This, we said, was particularly important in a country with a generalised epidemic of the magnitude seen in South Africa. Put crudely, both men and women who take it up the bottom without protection should be excluded.

So what about the new form? It now asks male donors if — in the previous six months — they have had “oral or anal sex with another man with or without a condom or other form of protection”. In other words, are you a sexually active gay man? You could be married to your monogamous same-sex spouse and engage only in protected oral sex and still be excluded. (Perhaps such people should be excluded on the basis of being paranoid!) But a woman whose husband enters her from the rear, without a condom, is kosher. Don’t laugh — it happens.

As always, I digress. Get me thinking about any topic under the sun and soon it’s all about body parts, sex and HIV. I should get out more. Which reminds me, where does one go in Cape Town for a decent bachelor’s party?

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Jonathan Berger

Jonathan Berger

Jonathan Berger is a lawyer by training and a troublemaker by profession.

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