National Coalition for Gay and Lesbian Equality v Minister of Justice

The Constitutional Court declared the common law crime of sodomy and related statutory offences unconstitutional insofar as they criminalized consensual sexual conduct between men. The Court held that these laws violated the equality and dignity guarantees in the Constitution, marking a watershed moment for LGBTQ+ rights in South Africa.

The National Coalition for Gay and Lesbian Equality challenged the constitutionality of the common law offence of sodomy and certain sections of the Sexual Offences Act that criminalized consensual same-sex sexual conduct between men. The applicants argued these laws unfairly discriminated on the basis of sexual orientation and violated human dignity.

Whether the common law offence of sodomy and related statutory provisions that criminalize consensual sexual conduct between men are inconsistent with the Constitution, particularly the equality clause and the right to dignity.

The Court declared the common law offence of sodomy and related statutory offences unconstitutional and invalid to the extent that they criminalized consensual sexual conduct between men. The provisions were found to violate the rights to equality, dignity, and privacy enshrined in the Constitution.

Laws that criminalize private consensual sexual conduct between adults solely on the basis of sexual orientation constitute unfair discrimination and impair the human dignity of gay and lesbian persons, violating the constitutional guarantees of equality and dignity.

The Court found that the impugned provisions unfairly discriminated against gay men by criminalizing their intimate consensual conduct while not criminalizing equivalent conduct by heterosexuals or lesbians. This discrimination was based on an immutable characteristic (sexual orientation) and reinforced harmful stereotypes, causing profound harm to the dignity, personhood, and identity of gay men. The laws could not be justified in an open and democratic society based on human dignity, equality, and freedom.

The Court emphasized the transformative nature of the South African Constitution and its commitment to substantive equality, signaling that constitutional protections extend robustly to sexual minorities and that the law must reflect the diverse nature of South African society.

This case is foundational in South African constitutional law and LGBTQ+ jurisprudence, representing one of the first major Constitutional Court decisions to vindicate sexual orientation as a protected ground under the equality clause. It laid the groundwork for subsequent progressive judgments on LGBTQ+ rights, including same-sex marriage, and demonstrated the Constitution's transformative potential in dismantling discriminatory apartheid-era laws.

National Coalition for Gay and Lesbian Equality v Minister of Justice 1999 (1) SA 6 (CC) [1998] ZACC 15