National Coalition for Gay and Lesbian Equality v. Minister of Justice

CCT 11/98
Download Judgment: English

The Applicants were the South African Human Rights Commission and a coalition of 70 organizations representing lesbian, gay, bisexual, and transgender people in South Africa. They brought a constitutional challenge to various statutory provisions in South Africa criminalizing homosexual acts.

The Applicants claimed that the statutes in question violated sections 9, 10 and 14 of the Constitution of South Africa. Section 9 provides that every person has the right to equal protection and benefit of the law, and the Government may not unfairly discriminate against any person on grounds of race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language or birth. Section 10 guarantees the right to human dignity. Section 14 guarantees the right to privacy.

The Court held that statutes criminalizing sodomy violate the constitutional right to protection from discrimination on the ground of sexual orientation, and the rights to human dignity and privacy. The Court further held that the criminal statutes bore no rational connection to any legitimate governmental purpose. The Court also held that the common-law offense of sodomy was unconstitutional.

The Court stated that discrimination on the ground of sexual orientation was unfair and unjustifiable. It declared that, even if unenforced, the existence of a statute criminalizing consensual sexual behaviour between males “reinforces the misapprehension and general prejudice of the public” against male homosexuality. The Court further held that such statutes violate the right to dignity as they put gay men at risk of arrest and conviction “simply because they seek to engage in sexual conduct which is part of their experience of being human.”

"The criminalisation of sodomy in private between consenting males is a severe limitation of a gay man’s right to equality in relation to sexual orientation, because it hits at one of the ways in which gays give expression to their sexual orientation. It is at the same time a severe limitation of the gay man’s rights to privacy, dignity and freedom. The harm caused by the provision can, and often does, affect his ability to achieve selfidentification and self-fulfilment. The harm also radiates out into society generally and gives rise to a wide variety of other discriminations, which collectively unfairly prevent a fair distribution of social goods and services and the award of social opportunities for gays.

Against this must be considered whether the limitation has any purpose and, if so, its importance. No valid purpose has been suggested. The enforcement of the private moral views of a section of the community, which are based to a large extent on nothing more than prejudice, cannot qualify as such a legitimate purpose. There is accordingly nothing, in the proportionality enquiry, to weigh against the extent of the limitation and its harmful impact on gays. It would therefore seem that there is no justification for the limitation."

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