Criteria for law reform on comprehensive sexuality education for children with disabilities in South Africa

Abstract

The recent expanded understanding of Sexual Reproductive Health and Rights (SRHR), which includes Comprehensive Sexuality Education (CSE), seeks to highlight inter alia the needs of adolescents, (especially those with disabilities) a group previously excluded from the narrow scope of SRHR. This paper identifies relevant and context-specific criteria for law reform of CSE provision in legislation for South Africa. The paper considers the international law and interpretive guidelines for CSE but relevant indicators such as inclusivity, accessibility and reasonable accommodation specifically for children with disabilities is absent from UNESCO’s Technical guidance on sexuality education: An evidence-informed approach for schools, teachers and health educators (2018). An analysis of the policy and South African legislation identifies that explicit provision for CSE and the accessibility of CSE and reasonable accommodation of children/adolescents with disabilities are largely absent. The implementation delay in the legislative framework currently contributes to the high number of out-of-school children with disabilities and also does not have a concrete provision for CSE. A review of the policy framework shows fragmentation, misalignment, and incoherence, which is unlikely to be remedied absent an enabling legislative provision that identifies the criteria for CSE, including for children/youth with disabilities, and a requirement for multi-sectoral alignment, budgeting and data disaggregation. The paper recommends an amendment to the Children’s Act 38 of 2005 for explicit inclusion of CSE as this legislation is applicable to all children and extends beyond the context of education-sector specific legislation. Such an amendment would obligate the state to provide CSE not only in schools, but also in juvenile correction centres, hospitals, clinics and in other relevant public service facilities that cater for children - as well as in community-based fora. It further recommends an explicit provision on CSE in relevant sectors and general principles of accessibility and reasonable accommodation in proposed disability-specific legislation.