A Second Look : Timothy Trengove-Jones
aIt is a truism that the love which once dared not speak its name is now unstoppably voluble. On stage, on screen, in the media, yes, even on the streets, homosexuals are articulating their presence with increasing confidence. And, on November 25 1997, almost 100 years after the (in)famous trial that discredited Oscar Wilde and “those like him”, this visibility and volubility will again go to court.
The setting this time is the Johannesburg High Court and, in a significant reversal, homosexuality arrives not as the defendant but as the complainant. At issue is the application brought by the National Coalition for Gay and Lesbian Equality and the Human Rights Commission for the decriminalisation of consensual same-sex conduct. The laws challenged include the common-law crimes of sodomy and other “unnatural offences” between men; section 20A of the Sexual Offences Act 23 of 1957 (which makes illegal “any act which is calculated to stimulate sexual passion or give sexual gratification” between men at “any occasion where more than two persons are present”); and schedule 1 of the Criminal Procedure Act 51 of 1977 which allows for the arrest of any person reasonably suspected of committing sodomy.
This application seeks to do no more than bring the laws of the land into alliance with the much-praised equality clause in our new Constitution, but for something like two months Minister of Justice Dullah Omar seemed intent on opposing it.
Amid considerable muddle over Omar’s intentions, Deon Rudman, deputy director general of the Department of Justice, stated winningly on September 2 that “we need to strike a balance; if we allow too much leeway we’ll then have children’s rights groups on our hands”. More equivocation about why the minister would oppose the application followed; “technicalities” were mentioned but not clarified. Finally, it was reported this week that the minister had decided not to oppose the application.
It is outrageous and crucially telling that Rudman should raise the spectre of paedophile panic. It is unacceptable that the minister has offered no unambiguous retraction of this dangerous red herring.
It seems clear that the muddle and mystery have to do with Omar’s desire to have his cake and eat it. On the one hand he knows the Constitution is on the side of gay rights. On the other, he wishes to appease his conservative Western Cape constituency (and, quite possibly, not them only). To the latter he can say, “I did what I could.” To homosexuals he can say, “I did what I had to.” Both claims are most often the bleat of expediency. It will be fitting if neither group is pleased or appeased.
It seems likely that pressure from within the African National Congress was an additional reason for Omar’s withdrawal. If so, it is a heartening signal for all those interested in constitutionalism in the new South Africa. Since memories are often short, this is a good moment to remind ourselves that in his inaugural address President Nelson Mandela explicitly committed himself and his government to equality for all irrespective of “sexual orientation”.
Nevertheless, it seems to me that the central issue informing this court application still requires to be stated with the utmost clarity. What is at issue is the freedom of sexual choice. Of sexual choice, not sexual acts, since some sexual acts – rape, child molestation – cannot be condoned. Nor is there an objection to the existence of constraints. The objection is to the unequal application of constraints. (This observation should silence those who say, correctly, that no right is absolute.) It is as simple and as important as that.
To say that the coalition’s application seeks to do no more than bring the laws of the land into alliance with the Constitution is, of course, an understatement. What is happening is that a hugely fraught area of contestatory values is being brought into the open. Both the coalition’s invocation of social justice and the justice department’s insistence on “balance” and “technicalities” partially mask what one might call an unconscious.
The language of social policy and constitutional rights seeks – unsuccessfully – to maintain a careful distance from the explosive social and familial questions at issue. Nothing is more inimical to the current heterosexual hegemony (fragile and unbudgeable at once), nothing is more readily stigmatised as a potentially anti- communitarian force, than consensual sodomy. It is much easier to re- jig the law than to try to redirect a centuries-old equation of anality and evil.
The application should not be seen as an isolated incident. Rather, it is part of the debate between modernity and traditionalism in personal relations. And it provides the latest instance (the death penalty is another) of the tensions between populism and constitutionalism. The faultlines tracked by these divisions loom like ravines.
Yet the coalition’s high-court application lets us try to see things differently. A finding in favour of the coalition might allow homosexuals not to appear as martyrs and to have less cause to be professionally angry. Heterosexuals, likewise, may emerge from their typecast roles as demons and oppressors. This is, of course, a little utopian. At the very least, after the court’s ruling, the future will, we hope, not be as it was.
All of us know – though we might not have put it quite like this – that, as Michel Foucault said, we “should consider the battle for gay rights as an episode that cannot be the final stage”. In some such awareness rests the promise and the disconcertment felt by the various parties to the current debate.