October 6, 1998
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October 6, 1998 |
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news | resources | culture | q-chat | q-people | letters |
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| gay news |
Legal gains are no easy victories Zackie Achmat talks about the sexual orientation clause in Article 9(3) of the Constitution and Judge Heher's landmark decision to strike down the notorious sodomy law and the Sexual Offences Act YES, we will no longer break the law when we have sex or when we show affection to our lovers. No-one will be able to tell lesbian and gay teenagers that they have no right to sexuality education. Fears by parents that their lesbian and gay children could be prosecuted are gone. And, South Africa's example will be a ray of hope to lesbian and gay pople who live in countries where the can be flogged, executed, imprisoned and blackmailed - whether in Iran, Zimbabwe or the United States. On May 8, 1998, Judge Jonathan Heher of the Johannesburg High Court declared that the laws which criminalise sex between men unconstitutional. More than 300 years of colonial and apartheid laws against same-sex acts are gone. But the ghosts of those executed, imprisoned, blackmailed and cast out of society will ahunt the pages of our history. Many years will pass before the stigma against lesbian and gay pople is removed. Judge Heher struck down the common law crimes of sodomy and unnatural offenses, Section 20A of the Sexual Offenses Act, as well as the schedules to the Criminal Procedure Act and the Security Officers' Act which include sodomy as offences. The successful application by the National Coalition for Gay & Lesbian Equality (the Coalition) and the South African Human Rights Commission is widely regarded as the official decriminalisation of all same-sex acts. This judgement has far wider symbolic and real significance for lesbian and gay communities than the legalisation of sex between men. How could lesbian and gay people claim equality while the sexuality of gay men remained criminalised? Defining the meaning of constitutional equality Judge Heher's interpretation of the equality clause in the Constitution is a very important legal gain for lesbian and gay people. He argued that "the expression of homosexuality is as normal as that of its heterosexual equivalent and is therefore entitled to equal tolerance and respect, it is impossible to find any governmental purpose which the law recognises which can draw persecution, (for the enforcement of the difference is no less), within its ambit." (p41) More than the police medical aid case, (Langermaat vs Polmed), this finding of the Heher Court means that sexual orientation cannot be a factor which influences "the distribution of social goods and services and the award of social opportunities." Judge Heher's finding has major implications for sexual orientation jurisprudence in private and public law. Whether in custody and access cases by lesbian and gay parents; medical aid applications by same-sex couples; harassment of lesbian and gay teenagers at school; job access or security of lesbian and gay employees - sexual orientation discrimination or "the enforcement of difference" could be regarded as "persecution" or unfair discrimination. These few sentences encapsulate the spirit of the Constitution. Judge Heher's use of the equality argument represents a legal advance for lesbian and gay people internationally. The Human Rights Commission and the Commission on Gender Equality hailed the judgement as a step in achieving legal equality for all South Africans and a positive message to the public. The Coalition endorses their view. Judge Heher further held that: "Constitutionally we have reached a stage of maturity in which recognition of the dignity and innate worth of every member of society is not a matter of reluctant concession, but is one of easy acceptance. (...) This is not to suggest that there has ever been reason to behave otherwise save for the usual impedimants to all kinds of human progress such as religious intolerance, ignorance, superstition, bigotry, fear of what is different from or alien to everyday experience and the millstone od history. The Constitution enjoins equal treatment before the law of persons entitled to its protection. That excludes individual or class discrimination. To penalise a homosexual person for the expression of his or her sexuality can only be defended from a standpoint which depends on the baneful influences to which I have alluded." (p14-15) Significantly for all human rights activists, Judge Heher held that religious belief and popular opinion could not justify discrimination.
36 Grafton Road, Yeoville Contact The Coalition Know your rights!
Constitution of the Republic of South Africa 1996, as adopted on 8 May 1996, and amended on One Law for One Nation
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