A case for repeal

Published : Jan 02, 2004 00:00 IST

ANTI-SODOMY laws have been successfully challenged in many parts of the world. In 1994, in Toonen vs Australia, the United Nations Commission on Human Rights, which monitors states' compliance with the International Covenant on Civil and Political Rights, ruled that laws that criminalised same sex behaviour violated the human right to freedom from non-discrimination and the human right to privacy.

In South Africa, gay and lesbian rights groups played an important part in the anti-apartheid movement and lobbied to include sexual orientation in the anti-discrimination clause of the South African Constitution. In 1998, South Africa's highest court on constitutional matters, the Constitutional Court, declared the laws that criminalised sex between men unconstitutional because they affected the "dignity, personhood and identity" of lesbian and gay people at a deep level. The ruling was based on an unopposed case brought by the National Coalition for Gay and Lesbian Equality and the South African Human Rights Commission. The court held that the laws that criminalised same-sex sexual and erotic activity independently breached the rights to equality, dignity and privacy. Justice Ackermann said the laws undermined self-esteem, caused psychological harm and legitimised violence and blackmail against lesbian, gay, bisexual and transgender people. In addition the court ruled: "The harm also radiates out into society generally and gives rise to a wide variety of other discriminations, which collectively prevent a fair distribution of social goods and services and the award of social opportunities for gays."

More recently, in the United States, in a landmark case (Lawrence vs Texas, 2003), the Supreme Court overruled the existing law laid down in Bowers vs Hardwick and held that a Texas statute that criminalised sodomy was unconstitutional. The court held that "branding one class of persons as criminal solely based on the State's moral disapproval of that class and the conduct associated with that class runs contrary to the values of the Constitution and the Equal Protection Clause."

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