Some people would probably respond by saying gay sex is morally wrong. They might say their religion prohibits it. Some people might even say it is disgusting. And others would say it is against African culture.
Others seem to think that gay people are a danger to others, that they are particularly prone to sexually assaulting others. Some people fear legalising gay sex is the thin end of the wedge: That the next thing is to legalise gay marriage, and that endangers the whole institution of marriage.
For some — perhaps underlying all these other justifications — there is an assumption that people who are attracted to those of the same sex make a choice, and that they can be ‘cured’, persuaded or punished into changing their ways.
UNPACKING THE SUPPOSED PURPOSES
The petitioners, and others involved in this case, would respond that these do not at all justify criminalising gay sexual behaviour, and that some are based on entirely false assumptions.
People are fully entitled to their moral and religious standards. But does this justify penalising others who do not share those standards, if they are not harming anyone? We all have freedom of religion, even to have no religion. We penalise killing, stealing and tax avoidance, for example, not because they are sins, though they are, but because they are harmful to individuals or the public. We do not ban lying, though it is wrong, unless it is harmful.
But does sex between consenting adults of the same sex harm anyone? People may be offended by it, but are they harmed?
Our Constitution protects minorities against unfair restrictions by the majority. That is what human rights provisions are for. It is simply not right to say the majority view must prevail.
To assume that gay people all abuse others is not justified, and is discriminatory. And to the extent that gay sex might be harmful (which would be if it was against a person’s will) it is punishable under another, very strict, law. The Sexual Offences Act penalises not only male abuse of females. Also, if there was any element of transmission of HIV, to transmit it deliberately is a crime, whether committed in the context of a same-sex or mixed-sex relationship.
The idea that homosexuality is not African has no basis in fact. The petitioners have expert witnesses who will show that all societies have roughly the same percentage of persons sexually attracted to those of the same sex — about 4 per cent. In fact, what is un-African is the law against same-sex relations: It was introduced by the British in all its colonies, after having been introduced in the UK itself in the 1880s. Other colonising nations did not do the same. Another myth is that being gay is a choice. The expert evidence shows people do not choose it, and they cannot be ‘cured’.
Finally, gay marriage: The Constitution makes it clear that no-one can claim a right to marry a person of the same sex. Our Constitution is maybe unique in this. So the thin end of the wedge argument is far harder to make.
On the basis of these points, the petitioner is saying the supposed purpose of the law, which is to deter homosexual activity, is based on false assumptions, and is not a valid purpose justifying major assaults on people’s rights.
BACK TO THE HUMAN BEING
The petitioner’s submission quotes Bishop Desmond Tutu, a great Christian and a great humanist, who said this to the UN: “All over the world, lesbian, gay, bisexual and transgender people are persecuted. They face violence, torture and criminal sanctions because of how they live and who they love. We make them doubt that they too are children of God — and this must be nearly the ultimate blasphemy. They are equal members of the human family.”
By JILL COTTRELL GHAI and YASH PAL GHAI