LGBTQIA+ identities are criminalised in 38 of 54 African countries. This includes Malawi, the southern African nation where, in 2010, Tiwonge Chimbalanga was imprisoned two days after celebrating her engagement to a man. Tiwonge, a transgender woman, received a 14-year prison sentence under provisions of Malawi’s Penal Code which criminalise ‘unnatural offences’ and ‘indecent practices between males’. British colonists imposed a single sexual code – that of Victorian England – upon all their colonised peoples and the aforementioned provisions of Malawi’s Penal Code date back to this colonial period.

Following Tiwonge’s imprisonment, an international campaign, which included human rights organizations, various governments, and the then-United Nations Secretary General, led to her pardon. Following her pardon, Tiwonge resettled as a refugee in South Africa, a popular destination for LGBTQIA+ Africans who have experienced human rights violations in their countries of origin. However, as is the experience of many LGBTQIA+ African migrants in South Africa, Tiwonge has continued to face discrimination and violent attacks due to her gender identity and migrant status.

LGBTQI+ in Africa

Although a handful of African countries such as Mauritius, Botswana, Mozambique, Seychelles and South Africa have passed laws to protect LGBTQIA+ people from discrimination, the high-level picture indicates that LGBTQIA+ persons experience systematic human rights violations across the continent. For example, in countries such as Nigeria, Mauritania, Sudan, and Somalia, LGBTQIA+ individuals encounter lengthy jail terms, lashes, eviction from accommodation, dismissal from their jobs, and/or the death penalty. In Uganda, the country of origin of many LGBTQIA+ migrants in South Africa, the Anti-Homosexuality Act imposes the death penalty, life imprisonment or between 10 and 20 years in prison for “attempted homosexuality” and “promotion of homosexuality”. In order to avoid facing odious punishments and social ostracization, African LGBTQIA+ individuals are forcibly displaced to protect their livelihoods as well as their psychological and physical wellbeing.

Destination South Africa

Since apartheid ended in 1994, South Africa has received a significant number of African refugees. Between 2006 and 2011, South Africa received the highest number of refugees in the world, the majority of whom came from the Democratic Republic of Congo, Somalia and Zimbabwe. South Africa’s legal framework contains progressive provisions which guarantee all refugees the right to work and legally reside in the country. South Africa’s relatively modern economy and progressive constitution are other key aspects of its appeal.

South Africa carries an additional appeal for African LGBTQIA+ individuals seeking to flee victimisation and criminalisation in their home countries. Due to the provisions of its progressive post-apartheid constitution, South Africa has explicitly recognised persecution based on sexuality and gender identity as legitimate grounds for asylum since 1998. Currently, it is the only African country that formally extends refugee protection to include these grounds. Therefore, on paper, LGBTQIA+ migrants are free in South Africa, but in practice do they enjoy this liberty?

The role of afrophobia

The key to understanding the lived reality of African LGBTQIA+ migrants in South Africa is the issue of anti-immigrant sentiments in South Africa, which has the unfortunate reputation as one of the most hostile destinations in the world for African migrants. Between 1994 and March 2024, violent vigilante xenophobic attacks perpetrated by non-state actors have resulted in 669 deaths, 5,310 looted shops owned by foreign nationals, and 127,572 internal displacements. There has been a growing trend to label the existing anti-migrant sentiments in South Africa as ‘afrophobia’ as opposed to ‘xenophobia’ due to the targeting, by politicians, in public discourse and the media, of migrants from other African countries.

LGBTQIA+ African migrants find themselves within this context of afrophobia in South Africa. Studies demonstrate that LGBTQIA+ African forced migrants disproportionately experience social exclusion, harassment, exploitation and sexual, physical and psychological violence. These challenges are largely attributed to the intersectional discrimination that they encounter. Such as all African migrants, they are vulnerable to afrophobic discrimination and abuse and, as LGBTQIA+ individuals, they endure queerphobic violence. As one study concluded: these migrants ‘do not experience homophobia/transphobia in one place and xenophobia in another, but rather live both concurrently.’

Gender identity: a further intersection

How are the challenges that trans refugees in South Africa encounter unique? The primary explanation is because the country’s law precludes refugees from accessing legal gender recognition (LGR), a process in which trans individuals change their name and gender markers on official government documents to reflect their lived gender identity. Due to the exclusion, there is a mismatch between their lived gender and their ‘official gender’ on their legal documents, which they require to access a number of services. This incongruence ‘outs’ trans refugees to the viewer of the document and exposes them to queerphobic sentiments that trans South African citizens and permanent residents, who have access to LGR, are less likely to experience due to the alignment between their lived gender and their ‘official gender’. Therefore, accessing employment, safe housing and health, social and justice services is challenging for many trans refugees. The incongruence of names and gender markers has also led to arrest and detention of trans refugees because their documents, indicating a different gender from the one which they present as, have been taken as an indication of fraud.

With the current unemployment rate sitting at 33.5%, obtaining gainful employment is a struggle for many South Africans, but more so for trans migrants due to the nature of their documentation which often results in them being visibly conceived as being trans. A study found that accessing legal employment is particularly challenging for black trans migrant women, who tend to gravitate to occupations that are criminalised, and inherently insecure,  in South Africa, such as sex work. 

The inability to secure stable employment is inextricably tied to the struggle faced by African transgender forced migrants in obtaining safe housing. When employers refuse to employ this class of migrants or offer them lower wages than those paid to cisgender persons or South African citizens, transgender migrants are unable to maintain a stable income adequate to pay rent. Yet even with sufficient resources, transphobic and afrophobic attitudes impede their ability to obtain safe and stable accommodation.

Trans migrants have reported being evicted by their landlords and law enforcement officials being unwilling to consider their complaints following evictions. Furthermore, migrant shelters are often not safe spaces for trans migrants as they experience discrimination both from shelter staff and other residents. Regrettably, eviction by family members and migrant community members is also not uncommon when a trans person’s gender identity becomes known. 

Interventions and narratives

In response to ongoing challenges of discrimination, harassment, and violence, many trans African migrants in South Africa have formed resistance and created solidarity to advance equality. They have done this by forming networks with other activists, organisations and communities which mobilise on behalf of migrant rights and LGBTQI+ rights more broadly. For example, during the COVID-19 pandemic, a grassroots coalition of organisations raised and distributed emergency relief funds to trans migrants. The project also supported capacity-building and skills-development for community leaders, leading to the eventual formal registration of one network as an organisation. This example of collective organisation and solidarity is one of many in which trans migrants either as members, or leaders of communities, established power.

This sense of empowerment flows from having left oppressive and stigmatising contexts and residing in a new country in which they feel comfortable with asserting their gender non-conformity, challenging beliefs of community members, and reporting, often for the first time in their lives, instances of discrimination to state officials. Highlighting this reality is important in countering the predominant narrative of this community being solely victimised.

Many of the issues that trans African migrants in South Africa encounter are closely associated with the lack of access to LGR. Therefore, human rights defenders, especially lawyers, should prioritise challenging the constitutionality of this exclusion. However, as many of the challenges that these migrants experience are rooted in societal attitudes, there is a need for advocacy campaigns to challenge discriminatory views by providing a human face to their realities. GenderDynamix, a  South African non-governmental organisation, has launched a powerful campaign with this very objective titled ‘Breaking Borders and Bi­naries’.

Emerging networks between LGBTQIA+ groups and migrant groups are welcome due to the important role they play in sensitising host communities and facilitating the integration of trans African refugees within them. However, there is a need for the geographic availability of such networks and the support they offer trans African migrants needs to be amplified in response to the growing populations of LGBTQIA+ migrants outside of South Africa’s metropolitan areas. Sadly, no research has been done which considers the unique challenges that this category of trans migrants face.

Despite the concentration of these networks in urban areas, the influence that they have is vital in improving the experiences of trans migrants in South Africa. The expansion of these networks, as well as interventions by human rights lawyers, will go a long way in ensuring that experiences of discrimination, such as Tiwonge’s, occur less often, or perhaps one day, are even eradicated.

This text received comments and editorial contributions from Margarita Martínez, coordinator of the Gender line at Dejusticia, and Lucía Ramírez, consultant on gender and international issues.