Why protect rights of gays and lesbians?
South Africa's Constitution is the first in the world to prohibit unfair discrimination on the grounds of sexual orientation. It thereby guarantees equality for gay and lesbian people.
Just as this section specifically mentions race and ethnicity in response to South Africa's past, sexual orientation is included because of the injustices gay and lesbian people have suffered.
Just 10 years ago sex between two people of the same sex was a crime and public displays of affection were considered indecent. Gay people were harassed and blackmailed (frequently by the police), often denied employment and refused custody of their children after divorce.
One of South Africa's most bizarre and notorious anti-gay laws was introduced after a police raid on a gay party in a suburb of Johannesburg in 1966. Amendments to the Immorality Act resulted in the infamous "three men at a party clause", which criminalised any "male person who commits with another male person at a party any act which is calculated to stimulate sexual passion or give sexual gratification". A "party" was defined as "any occasion where more than two persons are present".
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Section 9 - Sexual orientation
Unlike children, gays and lesbians do not have a special section in the Bill of Rights devoted to their rights. Rather, the relevant part of section 9 of the Constitution, entitled "Equality", states that:
"(3) The state may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth."
Gays and lesbians are protected by the inclusion of sexual orientation as one of the listed grounds on which unfair discrimination may not take place.
The listing of specific cases in section 9(3) does not mean, however, that to be considered unconstitutional, discrimination would have to be based on one of the grounds mentioned.
Gay rights might enjoy protection even in the absence of the specific reference to sexual orientation. But their explicit mentioning gives our Bill of Rights a special place in the world: South Africa was the first country to enshrine gay rights in its Constitution and, in so doing, provide its citizens with constitutional protection from discrimination on the basis of their sexual orientation.
A number of decisions handed down by the Constitutional Court confirm that this section prohibits the state from unfairly discriminating against gays and lesbians. The legal term that describes this is "vertical discrimination", because it operates from the top (from the level of the government) downwards (to the citizen).
But what about private individuals - people such as employers, doctors, hotel owners or shopkeepers - who can also be a source of discrimination? This question of "horizontal discrimination", committed by ordinary people (or even organisations and companies), is tackled by section 9(4) of the Constitution. It says:
(4) "No person may unfairly discriminate directly or indirectly against anyone on one or more grounds in terms of subsection (3)."
Section 8(2), which says a provision of the Bill of Rights binds a natural or a juristic person if applicable, is also relevant here.
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Key Constitutional Court judgments
The Constitutional Court has played a profound role in enforcing this prohibition against such unfair discrimination. The Judges have, in a number of cases, struck down or adjusted legislation that violates the constitutional right to equality.
National Coalition for Gay and Lesbian Equality and another v minister of justice and others (read the judgment)
This case dealt with the offence of sodomy in the common-law (that general body of law that isn't contained in statutes but is based on judicial decisions and custom). The crux of this matter was that the law prohibited sodomy between two consenting adult men.
The Constitutional Court had to confirm an order that the existence of this common-law offence was unconstitutional and invalid - as were references to sodomy in three statutes.
The Court found that the existence of these offences violated the right to equality.
Sodomy laws criminalised the intimate relationships of a vulnerable minority group - gay men. This degrading treatment constituted a violation of the rights to dignity and privacy.
These offences - which did not constitute reasonable or justifiable limitations on the rights of gay men to equality, dignity and privacy - were unconstitutional and invalid.
National Coalition for Gay and Lesbian Equality and others v minister of home affairs and others (read the judgment)
The High Court had declared section 25(5) of the Aliens Control Act of 1991 unconstitutional because it omitted to give persons who were partners in permanent same-sex life partnerships the benefits it extended to "spouses".
The case, referred to the Constitutional Court for confirmation, considered whether it was unconstitutional to allow the immigration of the foreign spouses of permanent South African residents but not to afford the same benefits to South African gays and lesbians in permanent same-sex life partnerships with foreigners.
The Court held that section 25(5) suggested that gays and lesbians were unworthy of having their family lives respected or protected - an invasion of their dignity.
Section 25(5) discriminated unfairly on the grounds of sexual orientation and marital status, and seriously limited rights to equality and dignity in a way that was not reasonable and justifiable.
The Court held Section 25(5) to be unconstitutional and decided that to read words into the statute would be better than to strike down the problematic section. The words "or partner in a permanent same-sex life partnership" needed to be added.
Du Toit and another v minister of welfare and others (read the judgment)
Two partners in a longstanding lesbian relationship had brought an application in the Pretoria Children's Court jointly to adopt two children. But, because the Child Care Act confined joint adoption to married couples, custody and guardianship rights could be granted to one partner only.
The applicants then brought an application challenging the constitutionality of certain provisions of the Child Care Act and the Guardianship Act. The High Court agreed.
In the confirmation proceedings, the Constitutional Court found that the statutory provisions discriminated on the grounds of sexual orientation and marital status, and that the dignity of the first applicant had been infringed. The Court held that the legislation also infringed the principle that a child's best interests were paramount. It confirmed the order of constitutional invalidity.
Satchwell v the president of the Republic of South Africa (read the judgment)
A High Court order had declared sections 8 and 9 of the Judges' Remuneration and Conditions of Services Act unconstitutional to the extent that they afforded benefits to the spouses of judges but not to their same-sex life partners.
The applicant, a judge, and her same-sex partner lived as a married couple but were not legally "spouses".
The Constitutional Court found that the provisions unfairly and unjustifiably discriminated on the basis of sexual orientation. It ordered that sections 8 and 9 be read as according benefits not only to spouses of judges but also to permanent same-sex life partners of judges where reciprocal duties of support had been undertaken.
J and B v the director-general of home affairs and others (read the judgment)
This case concerned provisions of the Children's Status Act of 1987, which defined the status of children conceived by artificial insemination.
Section 5 of the act provided that, where a married couple used the gamete or gametes of another person to conceive a child through artificial insemination, that child be considered the legitimate child of the married couple.
The two applicants had been involved in a permanent same-sex partnership since 1995. In August 2001, the second applicant gave birth to twins conceived with sperm from an anonymous donor.
Both applicants wanted to be registered as the parents of the twins, but only the second applicant, as the "birth-mother", succeeded.
The High Court declared the section unconstitutional on the grounds that it unfairly discriminated on the basis of sexual orientation.
Justice Goldstone - delivering the judgment in the Constitutional Court's confirmation hearing - declared section 5 discriminatory and unjustifiable.
The Court ordered that the section be read to provide the same status to children born from artificial insemination to same-sex permanent life partners.
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Parliament has, in keeping with the equality clause, passed legislation to prevent discrimination in a range of areas. For example, the Promotion of Equality and Prevention of Unfair Discrimination Act of 2000, commits the government to "promote equality" on all the grounds in the equality clause.
Other statutes that give recognition to the rights of gays and lesbians include the Domestic Violence Act of 1999, the Rental Housing Act of 1999, the Employment Equity Act of 1998, the Medical Schemes Act of 1998 and the Labour Relations Act of 1995.
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