Building concrete strategies to address the legal and policy challenges to LGBTI rights advocacy in the region Anneke Meerkotter Southern Africa Litigation Centre T: +27 (0) f: +27 (0) March 2013

Criminalisation of same-sex sexual acts between consenting adults A person’s sexual orientation or gender identity is usually not an element in a crime Statements such as ‘homosexuality is a crime’ often inaccurate Criminalisation in Southern-Africa Many Southern African countries have criminal laws which prohibit same-sex sexual acts dating from: Roman-Dutch common law as it existed in the 1600s-1700s – sodomy, unnatural acts English law as it existed in 1800s-1900s – carnal knowledge against the order of nature (buggery), gross indecency

Offences related to consensual same-sex sexual acts No criminal laws / laws not enforced Sodomy (anal sex between men) Unnatural sexual acts between men Unlawful carnal knowledge (anal sex between men) Gross indecency between men Gross indecency between women SADC Countries Angola  Botswana  Dem. Rep. of Congo  Lesotho  Madagascar  Malawi  Mauritius  Mozambique  Namibia  Seychelles  South Africa  Swaziland  Tanzania  Zambia  Zimbabwe  (sodomy defined to include indecent acts between men)

Where to start? Best interests of client Duration of litigation Risks in litigation Likely outcomes, appeals Confidentiality Media exposure Strength of evidence Support for case Costs

Strategies to repeal criminal laws which prohibit same-sex sexual acts Approaching the courts to – Repeal the laws for being vague or unconstitutional (risky, e.g Botswana and Zimbabwe) Gradually challenge the enforcement of the law (e.g. unconstitutionality of evidence used to prove charge) Lobbying parliament to amend or repeal laws Law reform processes often stall after opposition from religious and traditional segments of population Encouraging review of these laws by law reform commissions e.g Wolfenden Committee – however did not lead to immediate law reform Use above strategies in tandem with public advocacy on universality of rights, rights of LGBT

Key questions before engaging in litigation challenging criminal laws? What is the risk of bad precedent? What is the current jurisprudence on separation of powers? What is the court’s view on its role as deferential to parliament? Are the courts sufficiently independent to be willing to engage issues? Have the courts indicated sympathy for LGBT cases before? What is the courts’ attitude to questions of public morality? Is public morality alone seen by courts as sufficient basis for criminal law? Have we done enough groundwork to ensure that the judges and public are sympathetic to the issues?

Public morality Recent decisions/events prioritising public opinion could negatively affect case Kanane and Banana – perceived public opinion trumped constitutional rights However, court should have proportional analysis when constitutional right infringed – Legitimate purpose? Least restriction of right? McCoskar and Nadan v State, Fiji High Court, 2005 Held public morality not relevant to constitutional interpretation – found violation of right to privacy Naz Foundation, NGCLE, Lawrence Courts rejected public morality rationale “Moral indignation, howsoever strong, is not a valid basis for overriding individual’s fundamental rights of dignity and privacy” (Naz Foundation) Private moral views = prejudice

Examples of litigation challenging criminal laws: Is the political climate right? Has sufficient advocacy been done? Case No TC, Constitutional Tribunal of Ecuador, 1997 Arrest of more than 100 gays – triggered protests, more than a 1000 private citizens brought public action challenging constitutionality of criminal law prohibiting same-sex sexual conduct Court described homosexuality as medical condition to be dealt with medically not by penal sanction, stated that homosexuals entitled to equality but did not condone it Constitution since amended to prohibit discrimination based on sexual orientation Response of government institutions affects outcome – e.g intervention of human rights institutions in support of decriminalisation; differences between government departments Naz Foundation v Government of NCT of Delhi, High Court, 2009 NGO filed petition challenging constitutionality “unnatural offences” in Penal Code – court dismissed application on basis that cannot hear academic challenge to constitutionality of legislation – appealed to Supreme Court which held matter should be heard Other organisations intervened supporting application Respondent represented by Ministry of Home Affairs and Ministry of health, but latter argued in favour of application Public health arguments in favour of decriminalisation Violated right to privacy and equality

Positive regional case law SA: National Coalition for Gay and Lesbian Equality v Minister of Justice and others 1999 (1) SA 6 (CC) – sodomy laws violated right to equality, dignity and privacy Equality – sexual orientation a prohibited ground for discrimination in Constitution Dignity – need to acknowledge the value and worth of all individuals Privacy – “we all have a right to a sphere of private intimacy and autonomy which allows us to establish and nurture human relationships without interference from the outside community. The way in which we give expression to our sexuality is at the core of this area of private intimacy” “The enforcement of the private moral views of a section of the community, which are based to a large extent on nothing more than prejudice, cannot qualify as such a legitimate purpose.” National Coalition for Gay and Lesbian Equality v Minister of Justice and others, South African Constitutional Court, 9 October 1998

Negative regional case law Botswana: Kanane v the State 2003 (2) BLR 67 (CA) – LGBT not a class deserving of constitutional protection, court guided by public opinion – “the time has not yet arrived to decriminalise homosexual practices even between consenting adult males in private.” Zimbabwe: Banana v the State 2000 (1) ZLR 607 (SC) – it is not for the Court to “place a sexually liberal interpretation on the Constitution of a country whose social norms and values in such matters tend to be conservative.” “Depriving such persons of the right to choose for themselves how to conduct their intimate relationships poses a greater threat to the fabric of society as a whole than tolerance and understanding of non-conformity could ever do.” Dissenting opinion, Banana v State, Supreme Court of Zimbabwe, 29 May 2000

Sodomy laws violate rights to privacy and equality European Court of Human Rights held that the prohibitions against same- sex sexual acts violated the right to privacy Dudgeon v the United Kingdom (1982) 4 EHHR 149 Norris v Ireland (1991) 13 EHHR 186 Modinos v Cyprus 15070/89, April 1993 Secretary for Justice v Yau Yuk Lung Zigo and Lee Kam Chuen, Court of Final Appeal, Hong Kong, 2007 Sodomy provision violated right to equality Held that in order for differential treatment to be justified: Law must pursue legitimate aim (must establish genuine need for different treatment) Difference in treatment must be rationally connected to legitimate aim Proportionate (no more than necessary to accomplish legitimate aim) Heightened scrutiny of differentiation where based on race, sex or sexual orientation

Challenging unlawful evidence Committee Against Torture, Special Rapporteur on Torture and Working Group on Arbitrary Detention Have condemned the subjection of men suspected of sodomy to anal examinations Held that the practice contravened the prohibition against torture and ill- treatment In re Article 534, Criminal Court of Al-Bitroun, Lebanon, 2009 Court questioned strength of evidence and meaning of “sexual intercourse against nature”

Freedom of association Most constitutions entrench freedom of expression and association However, rights can be restricted where it is in the interest of “public morality”. Courts and regional bodies have emphasised the right to freedom of association in a democratic state. Civil Liberties Organisation v Nigeria 2000 AHRLR 186 Jawara v the Gambia 2000 AHRLR 107 Law Office of Ghazi Suleiman v Sudan 2003 AHRLR 144

Refusal to register LGBT organisations Phillippines: Ang Ladlad LGBT Party v Commission on Elections, Supreme Court, Refusing to register an LGBT organisation as a party could not be justified based on “moral disapproval” Held that the respondent had failed to explain what societal ills are sought to be prevented or why admission would be so harmful as to irreparably damage the moral fabric of society Violated right to equality, not court’s role to impose its own view of acceptable behaviour Argentina: Asocaicion Lucha por la Identidad Travestic-Transexual v Inspeccion General de Jusiticia, Supreme Court, 2006 – Limitation of the right to freedom of association risked isolating social groups which already had difficulty integrating in society Held decision discriminatory and no rational connection between differential treatment imposed on plaintiff and legitimate state objective Botswana: Kanane v S – Despite the criminal prohibition against same-sex sexual conduct “there is nothing to prevent them still so associating subject to the law”. See also Gay Alliance of Students v Matthews, US Court of Appeals, 1976 – even if same- sex sexual activity illegal, organisation engaged in advocacy, protected by freedom of association

State interference with freedom of association, assembly and expression of LGBT persons violates range of rights e.g. Right to personal liberty Right not to be unlawfully arrested Right not to be subjected to inhuman and degrading treatment Right to freedom of expression, assembly, association Right to dignity

Case specific actions to emphasise rights and hold states accountable Gays and Lesbians of Zimbabwe v Chairman of Board of Censors and Minister of Home Affairs, High Court, 6492/96 Government order obtained preventing GALZ from participating in Zimbabwe International Book fair – approached High Court to overturn order Mukasa and Oyo v Attorney General, High Court of Uganda, 2008 Raid of house of LGBT activist, unlawful search, police abuse at station (undressed and fondled her to determine her sex) Held violated prohibition against degrading treatment; right to privacy of person, home and property; personal liberty and human dignity – awarded compensation K21/05, In re Road Traffic Act, Constitutional Tribunal of Poland, 2006 Court emphasised right to freedom of assembly – section which provided excessive discretion to police to authorise march unconstitutional See also Baczowski v Poland, ECHR, held same provision violated rights to peaceful assembly, non-discrimination, effective remedy

Hate speech A process where a group is singled out based on their irreversible characteristics, labelled as inferior and targeted for discriminatory treatment Right to freedom of expression entrenched in international law – can be limited in cases of hate speech Vedjeland v Sweden, European Court of Human Rights, 2012 Held that hate speech based on sexual orientation should be considered as serious as hate speech based on race, origin or colour More scope for litigation in cases where prohibition of hate speech legislated e.g South Africa, Zambia (draft Constitution), Angola (draft Penal Code), Lesotho (Penal Code, 2010) Kasha Jacqueline and others v Rolling Stone, Uganda High Court, 2010 Court commented that laws prohibiting same-sex sexual acts do not criminalise a person for being gay Used an objective test to conclude that the publication threatened the rights of Applicants to respect for human dignity, protection from inhumane treatment and privacy of the person and home Court issued injunction restraining respondents from publishing more information about identities and addresses of LGBT

Discrimination based on sexual orientation Most Constitutions recognise right to quality Open list of grounds prohibiting discrimination – argue discrimination unfair because on analogous ground E.g South Africa (Hoffmann v SAA, CCT 17/00), Botswana (Makuto v S, Court of Appeal, 31/99), Namibia (N v Minister of Defence, 24/1998), Malawi (Banda v Lekha 2005 MWIRC 44) - courts included HIV status as analogous ground Sexual orientation included as analogous ground – European Court of Human Rights (Salgueiro da Silva Mouta v Portugal), Delhi High Court (Naz Foundation), Supreme Court of Canada (Vriend v Alberta) Closed list of grounds – broadly interpret grounds that are listed UN Human Rights Committee – ‘sex’ includes ‘sexual orientation’ Toonen v Australia, 1994, regarding sections 2 and 26 of ICCPR) – held provision of Tasmanian Criminal Code which criminalised consensual same-sex sexual conduct discriminatory Sentencia C-075/07, Constitutional Court of Colombia, 2007 – discrimination based on ‘sex’ include ‘sexual orientation’

Prohibited grounds of discrimination in national legislation Employment legislation prohibits discrimination based on sexual orientation – e.g. Botswana, South Africa, Mauritius, Seychelles (see also Angola draft penal Code) Suratt and others v Attorney General, Court of Appeal, Trinidad and Tobago, 2006 Held Equal Opportunity Act unconstitutional for explicitly stating that ‘sex’ does not include ‘sexual orientation’. However Privy Council overruled decision in 2007.

Recognition of equal rights for homosexual & heterosexual relationships “Legal conceptions of the family and what constitutes family life should change as social practices and traditions change” Du Toit v Minister of Welfare and Population Development, SA Constitutional Court, 2002 Some constitutions specifically prohibit same-sex marriages – e.g. Seychelles, Angola, DRC, draft constitutions of Zambia and Zimbabwe In other countries, prohibition against same-sex couples forming a family is contained in national legislation – basis of legal challenges SA Constitutional Court in Minister of Home Affairs v Fourie Held that to withhold marriage rights from same-sex couples was “a harsh if oblique statement by the law that same-sex couples are outsiders, and that their need for affirmation and protection of their intimate relations as human beings is somehow less than that of heterosexual couples” Court rejected argument that procreation essential feature of marriage; held cannot use religious doctrine to interpret constitution

1998 National Coalition for Gay and Lesbian Equality v Minister of Justice 1998 (12) BCLR 1357 CC Issue: Common law and statutory proscription of sodomy Held: Sodomy offences violate the right to privacy, equality and dignity 1999 National Coalition for Gay and Lesbian Equality v Minister of Home Affairs 2000 (1) BCLR 39 CC Issue: Immigration laws did not give same-sex partners same benefits as spouses of permanent residents Held: Discrimination based on sexual orientation and marital status, violates right to dignity 2002 Satchwell v President of South Africa 2002 (9) BCLR 986 (CC) Issue: Law restricted benefits to heterosexual spouses but not to same-sex life partners Held: Where evidence of reciprocal duty of support, definition of marriage to be interpreted widely to recognise various family structures which exist in society 2002 Du Toit v Minister of Welfare and Population Development 2002 (1) BCLR 1006 CC Issue: Law limited adoption rights to married couples Held: Discrimination based on sexual orientation and marital status, violates right to dignity, infringes principle of best interest of the child 2003 J and another v Director General, Department of Home Affairs 2003 (5) BCLR 463 CC Issue: Law allowed married couples to become joint parents of child born by artificial insemination, but did not allow same to same-sex partners Held: Discrimination between married persons and permanent same-sex life partners 2005 Minister of Home Affairs v Fourie and another 2006 (3) BCLR 355 CC Issue: Constitutionality of common law and statutory definition of marriage which referred only to opposite sex couples Held: Discrimination based on sexual orientation

Courts have been hesitant to grant rights to same-sex couples Namibia: Chairperson of the Immigration Selection Board v Frank and another, Supreme Court, whether lesbian life partnership could be considered in application for permanent residence Court held that protection of family under Constitution only extended to the “natural and fundamental group unit of society known at the time as an institution of Namibian society” “Equality before the law for each person, does not mean equality before the law for each person’s sexual relationships” UN Human Rights Committee Held that failure to also provide pension benefits to unmarried same-sex partners violation of rights – X v Colombia (2005), Young v Australia (2000) Held that international law does not require that States allow same-sex couples to marry – Joslin v New Zealand (2003)

Incremental approach Easier to start with argument against provisions which restrict benefits to heterosexual couples and deny benefits to committed same-sex partners than to argue that notion of institution of marriage should be broadened to include same-sex couples Colombia Sentencia C-075/07, Constitutional Court of Colombia, 2007 Constitutionality of excluding same-sex couples from economic protections granted to heterosexual unions Discrimination, violated dignity Did not mean same-sex unions considered families under Constitution Sentencia C-029/09, Constitutional Court of Colombia, 2009 Discrimination in various laws between opposite sex and same sex couples – held laws to be amended to be gender-neutral Brazil SGB v PREVI, Superior Tribunal of Justice of Rio de Janeiro, Brazil, 2010 Benefits from pension fund following death of partner – change in view of relationships – upheld ADI 4277 and ADPF 132, Supreme Tribunal Federal of Brazil, 2011 Granted registered same-sex couples rights of married couples Religious and moral principles could not be used to limit fundamental rights

Employment discrimination Siras v Aligarh Muslim University, India High Court, 2010 Moral turpitude with regard to employment – held that sexual preference did not amount to misconduct, violated right to privacy Sentencia C-481/98, Constitutional Court of Colombia, 1998 Judicial review of decree which categorised homosexuality as ground of misconduct - court held required to follow Toonen – thus differentiation based on sexual orientation presumed unconstitutional – must prove legitimate aim, pressing social need, strictly necessary, proportionality – declared decree unenforceable Strydom v Dutch Reformed Church, Moreleta Park, Equality Court, South Africa, 2008 Church terminated employment of music teacher on basis of sexual orientation – discrimination – ordered payment of damages for emotional suffering, lost wages and apology Ladele v Borough of Islington, Court of Appeal, UK, 2009 Appellant was a Catholic working as registrar of marriages – refused to register civil partnerships – held where legislature decided that discrimination on ground of sexual orientation subject to very limited exceptions, refusal of State official to perform duties was not permissible Same decision in In the Matter of Marriage Commissioners Appointed under Marriage Act, Saskatchewan Court of Appeal, Canada, 2011

Intersex Sentencia T-912/08 and Sentencia 377/99, Constitutional Court of Columbia – surgery to alter the genitals of a child with ambiguous genitalia Court held right to free development of personality included feeling of belonging to or identifying with particular sex Child’s informed consent required, not parent’s consent Surgery postponed until child could consent Richard Muasya v Attorney General, High Court of Kenya, 2010 Some rights not violated, insufficient proof “Social stigma that petitioner suffered was not a legal issue”, legislature better to deal with it Court held that invasive body searches and manner of examination in prison amounted to inhuman and degrading treatment, damages

Gender expression and cross-dressing Discrimination in schools where child expressed gender identity Doe v Yunits, Superior Court of Massachusetts, 2000 Laws which prohibit dressing in “sexually deviant” manner – used against transsexuals Teerarojjanapongs v Governor of Chiang Mai Province, Thailand Administrative Court, 2010

Discrimination based on gender-identity and expression Khaki v Rawalpindi, Supreme Court of Pakistan, 2009 Constitutional petition filed on behalf of hijras (individuals who adopt feminine gender identity) Discrimination, stigma and exclusion Court ordered social welfare mechanisms to respond Sunil Babu Pant v Government of Nepal, Supreme Court, 2007 Exclusion of men who dress and identify as feminine from civic rights, targeted police abuse for non-conforming gender expression Universality of rights, right to non-discrimination, right to privacy “The right to privacy is a fundamental right of an individual. The issue of sexual activity falls under the definition of privacy. No one has the right to question how two adults perform sexual intercourse and whether this intercourse is natural or unnatural.” Citizenship cards now have separate column for third sex. In 2008, Supreme Court directed government to draft laws recognising same-sex marriage

Legal recognition of gender identity JG v Pengarah Jabatan Pendaftaran Negara, High Court of Kuala Lumpur, Malaysia, 2005 Legal recognition as female and change in last digit on ID to indicate female gender Evidence of 3 doctors certifying that mentally and physically female In re Change of Name and Correction of Family Register, Supreme Court of South Korea, 2006 Correction of family register to change person’s gender – law allows only for changing errors or omissions –– allowed where transgender had complete genital reconstruction However, not allowed in Silverio v Philippines, Supreme Court, 2007 – administrative not judicial issue, no law which allows sex on birth certificate to be changed – denied

Legal recognition of gender identity Law in Germany allowed recognition of new gender if person underwent gender reassignment surgery, not married, incapable of reproducing and all external physical features conform to new gender 1 BvL 10/05, Federal Constitutional Court of Germany, 2008 – could not change gender if married – held this provision unconstitutional 1 BvR 3295/07 – Could not change gender identity without gender reassignment surgery – held law violated right to sexual self-determination and physical integrity, violated personality rights