sexual health and human rights in the african region - The ICHRP

[85] In reaching its conclusion that the crime of sodomy was unconstitutional, the
Constitutional Court of South Africa also considered international law and
foreign decisions. It drew support, inter alia, from the decisions of the European
Court of Human Rights 328 , the United Nations Human Rights Committee, 329 and
the Supreme Court of Canada 330 on the adverse impact of the crime of sodomy
on the respect, protection and fulfillment of fundamental rights. The Court found
that no justification could be mustered to retain the crime of sodomy under
section 36 of the Constitution as there was no rational basis for it.
[86] National Coalition for Gay and Lesbian Equality and Others v Minister of Justice and
Others is the first case in which the Constitutional Court, as the highest appellate
court in constitutional matters authoritatively determined that the common law
crime of sodomy was inconsistent with the constitutional right to equality. It is
significant that the Court determined the case on the basis that the right to
equality was the fundamental right that was preeminently implicated, but with
the right to human dignity serving as an attendant right. According to the Court,
the answer to the issue of unfair discrimination raised was not to achieve parity
in discrimination by also outlawing sex between women as well, but to
acknowledge that erotic expression was part of being human whether it be in
relation to heterosexual expression or homosexual expression. In this way, the
Court, without marginalizing the relevance of the right to privacy, highlighted
the importance of relying on equality, and more specifically, substantive
equality, as a more enduring and more encompassing fundamental right for
promoting the right to sexuality self-determination of a group that has been
historically stigmatized and marginalized. Simply basing the decision on the
right to privacy might have the inadvertent effect of treating sexualities that are
different from heterosexuality as sexualities that are acknowledged but should be
hidden from the public sphere.
328 Dudgeon v United Kingdom (1982) 4 EHHR 149; Norris v Republic of Ireland (1991) 13 EHRR 186. In two
cases, the European Court on Human Rights held that the sodomy laws of Northern Ireland and the
Republic of Ireland, respectively, constituted a breach of article 8 of the European Convention on Human
Rights guaranteeing the right to privacy.
329 Toonen v Australia Communication Number 488/1992 (31 March 1994) UN Human Rights Committee
Document No CCPR/C/50/D/488/1992. In this case, the Human Rights Committee held that a
Tasmanian law criminalizing sex between men was a violation of the right to privacy under article 17 of
the International Covenant on Civil and Political Rights which Australia had ratified.
330 Egan v Canada (1995) 29 CRR (2d) 79. In this case, the Supreme Court of Canada held that though not
listed, sexual orientation was an analogous ground under section 15 of the Canadian Charter of Rights
and Fundamental Freedoms, and thus discrimination on the basis of sexual orientation constituted unfair
discrimination, unless it could be justified under section 1 of the Charter; Vriend v Alberta [1998] 1 SCR
493, where the Supreme Court of Canada held that sexual orientation was a protected analogous ground
under the Individual Rights Protection Act of Alberta and that its exclusion created differential treatment
which has the effect of denying equal protection on the ground of sexual orientation.
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