February 1995 - 1996 - NCGLE’s contributions to the final text of the Constitution
There were limited efforts by conservative religious groupings to mobilise opposition to the sexual orientation clause. Submissions (in the form of petitions and individual submissions) to the constitutional assembly, revealed widespread support:
- There were 7 032 submissions in favour of retention of the prohibition against discrimination on grounds of sexual orientation and 13 000 people signed petitions.
- There were only 564 submissions against the inclusion of sexual orientation in the clause.
Strategy and argument
As in the case of CODESA, Kevan Botha led discussions with the Constitutional Assembly and its key subcommittee tasked with drafting the bill of rights on behalf of the NCGLE. He argued that there was a similarity in all forms of unfair discrimination and that discrimination against gay men and lesbians exhibited the same basic features as discrimination on the grounds of race and gender. The coalition’s submission also argued that sexual orientation was fixed, natural and could not be changed, and based these claims on scientific evidence. Given these features of sexual orientation, the NCGLE asserted the universality of same-sex sexuality — it was found in all parts of society and every culture. The submission stressed the fact that protections for lesbians and gay men did not infringe on the rights of heterosexuals.
The NCGLE assembled letters of support from affiliated organisations and several high-profile individuals, which it presented close to the deadline for submissions. It was able to get the support of several high-profile anti-apartheid struggle activists, such as Archbishop Desmond Tutu, who strongly supported including a prohibition of discrimination on grounds of sexual orientation and recognised the need for the Final Constitution to guarantee the “fundamental human right to a sexual life, whether heterosexual or homosexual.”
Submissions in support of inclusion followed certain trends. They phrased the request as a wish to “keep sexual orientation in the Constitution”, expressing approval for maintenance of the new status quo created by the Interim Constitution. Submissions calling for inclusion most often presented a fundamental rights argument: “Discrimination for one means discrimination for all, we cannot have a truly democratic society when any section of the population is discriminated against” and “I don’t work any different, I don’t sleep any different, I don’t love any different, I don’t want to be treated any different.”
Submissions that opposed the inclusion of sexual orientation in the Constitution were different in form as well as substance. Most were petitions; one typical submission from the pre-working draft stage states:
The overwhelming majority of opposition submissions based their argument on “biblical values” and fundamentalist Christian notions of morality. “How can any disgusting, deviant sexual behaviour have the phrase ‘fundamental rights’ protecting it?”
While the majority of submissions favoured inclusion, there was opposition and in October 1995 the inclusion of sexual orientation as a protected ground in the Constitution remained an outstanding issue. Opposition to the inclusion of gay and lesbian rights mostly came from two sources: a claim by African traditional leaders that homosexuality was ‘unAfrican’, and claims made by conservative religious groups. Both epitomised by the African Christian Democratic Party (ACDP), which argued strongly for the removal of mentions of sexual orientation from the Final Constitution. However, the majority party, the ANC, as well as all the other opposition parties did not oppose the inclusion of sexual orientation in the Final Constitution.
Technical Committee’s Explanatory Memorandum and international case studies
The Technical Committee emphasised that the enumerated grounds of discrimination in international law related to characteristics and choices that all formed an integral part of human personality and identity. The forbidden discrimination specifically related to groups that were particularly vulnerable to discrimination, exclusion and subordination, such as gays and lesbians.
Because of the absence of national precedents and human rights documents in South Africa, the Technical Committee bases its arguments and recommendations on various international human rights documents. In the international arena no formal international human rights document explicitly afforded gays and lesbians equal rights and protection from unfair discrimination based on sexual orientation. International human rights bodies therefore had to interpret certain rights in order to extend them to gays and lesbians. Thus, for example, the United Nations Human Rights Committee (hereafter UNHRC) interpreted sex, a prohibited ground of discrimination in terms of articles 2(1) and 26 of the International Covenant on Civil and Political Rights (hereafter ICCPR) as including sexual orientation. The UNHRC, therefore, ruled that legislation criminalising all forms of sexual intercourse between consenting homosexual men violated the right to privacy protected in article 17 of the ICCPR read with the right to non-discrimination in the enjoyment of the rights protected in the ICCPR. This interpretation is consistent with the case-law of the European Court of Human Rights.
The Technical Committee further referred to the Canadian case of Haig v Birch in which it was held that sexual orientation should be treated as an analogous ground of discrimination and should therefore be included within the scope of section 3(1) of the Canadian Human Rights Act, which prohibits discrimination on the grounds of race, national or ethnic origin, colour, religion, age, sex, sexual orientation, marital status, family status, disability and conviction for which a pardon has been granted. Not all the members of the Constitutional Assembly were convinced by the arguments based on international human rights precedents, chiefly because equal rights for gays and lesbians lacked universal acceptance. Advocates for the inclusion of a reference to sexual orientation “responded that universal acceptance only defined the minimum platform that had to be provided. It did not stop the constitution-making body from including other kinds of protection, even if not universally accepted”. Despite the debate in the Constitutional Assembly, the Technical Committee was unequivocal in its final endorsement: “[I]t is our strongest recommendation that sexual orientation be included as a prohibited ground of discrimination in the equality clause.”
