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Section 20A of the Immorality Act, 1957 , [1] commonly known as the "men at a party" clause, was a South African law that criminalised all sexual acts between men that occurred in the presence of a third person. The section was enacted by the Immorality Amendment Act, 1969 and remained in force until it was found to be unconstitutional in 1998 by the Constitutional Court in the case of National Coalition for Gay and Lesbian Equality v Minister of Justice .
The text of the clause was the following: [2]
"Acts committed between men at a party and which are calculated to stimulate sexual passion or to give sexual gratification, prohibited.
20A. (1) A male person who commits with another male person at a party an act which is calculated to stimulate sexual passion or to give sexual gratification, shall be guilty of an offence.
(2) For the purposes of subsection (1) 'a party' means any occasion where more than two persons are present.
(3) The provisions of subsection (1) do not derogate from the common law, any other provision of this Act or a provision of any other law."
The prescribed penalty was a fine of up to R4000 or imprisonment for up to two years or both. [3]
"Sodomy" and "unnatural sexual acts" were offences in the Roman-Dutch common law of South Africa. These offences criminalised, inter alia, anal sex, oral sex, intercrural sex and mutual masturbation between men, but did not apply to, for example, men merely touching or kissing each other. [4] In January 1966 the police raided a gay party, at which about 300 men were present, in the Forest Town suburb of Johannesburg. This, and a number of subsequent raids on parties and clubs in various cities, led to a moral panic. [5] [6] Homosexuality (particularly male homosexuality) was unacceptable in the Afrikaner Calvinist ethos of the apartheid regime, and Parliament reacted by convening a Select Committee which, in 1968, proposed a number of amendments to the Immorality Act. One of these was the "men at a party" clause, which was consequently enacted in 1969. [6]
In one notable case in 1987, a conviction under the section was reversed on appeal by the Supreme Court because the court ruled that "a party" was not created when a police officer entered a room in a gay bathhouse because the two men in the room jumped apart when he switched on the light. [7]
The Interim Constitution adopted in 1994 after the end of the apartheid regime, and the final Constitution which replaced it in 1997, both prohibited discrimination on the basis of sex, gender or sexual orientation. In 1997 the National Coalition for Gay and Lesbian Equality launched a constitutional challenge in the Witwatersrand Local Division of the High Court, asserting that the laws against "sodomy" and "unnatural sexual acts" as well as the "men at a party" clause infringed the equality clause of the Constitution. The government did not oppose the application, and in May 1998 Judge Heher handed down a judgment and order striking down the impugned laws. [8]
As required by South African law, the Constitutional Court issued a unanimous decision in October 1998 upholding Judge Heher's ruling to declare an act of Parliament illegal. Writing for the court, Justice Lourens Ackermann described the clause as having an "absurdly discriminatory purpose and impact," and stated that, "There is nothing before us to show that the provision was motivated by anything other than rank prejudice." [9]
Although it was already unenforceable because of the Constitutional Court's order, section 20A was formally removed from the statute-book by the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007. [10]
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Immorality Act was the title of two acts of the Parliament of South Africa which prohibited, amongst other things, sexual relations between white people and people of other races. The first Immorality Act, of 1927, prohibited sex between whites and blacks, until amended in 1950 to prohibit sex between whites and all non-whites. The second Immorality Act, of 1957, continued this prohibition and also dealt with many other sex offences. The ban on interracial sex was lifted in 1985, but certain sections of the 1957 act dealing with prostitution remain in force as the "Sexual Offences Act, 1957".
Bowers v. Hardwick, 478 U.S. 186 (1986), was a landmark decision of the U.S. Supreme Court that upheld, in a 5–4 ruling, the constitutionality of a Georgia sodomy law criminalizing oral and anal sex in private between consenting adults, in this case with respect to homosexual sodomy, though the law did not differentiate between homosexual and heterosexual sodomy. It was overturned in Lawrence v. Texas (2003), though the statute had already been struck down by the Georgia Supreme Court in 1998.
This is a list of notable events in the history of LGBT rights that took place in the year 1998.
Lesbian, gay, bisexual, and transgender (LGBT) people in South Africa have the same legal rights as non-LGBT people. South Africa has a complex and diverse history regarding the human rights of LGBT people. The legal and social status of between 400,000–over 2 million lesbian, gay, bisexual, transgender and intersex South Africans has been influenced by a combination of traditional South African morals, colonialism, and the lingering effects of apartheid and the human rights movement that contributed to its abolition.
Lesbian, gay, bisexual, and transgender (LGBT) people in Kenya face significant challenges not experienced by non-LGBT residents. Sodomy is a felony per Section 162 of the Kenyan Penal Code, punishable by 21 years' imprisonment, and any sexual practices are a felony under section 165 of the same statute, punishable by 5 years' imprisonment. On 24 May 2019, the High Court of Kenya refused an order to declare sections 162 and 165 unconstitutional. The state does not recognise any relationships between persons of the same sex; same-sex marriage is banned under the Kenyan Constitution since 2010. There are no explicit protections against discrimination on the basis of sexual orientation and gender identity. Adoption is restricted to heterosexual couples only.
Lesbian, gay, bisexual, and transgender (LGBT) people in Eswatini have limited legal rights. According to Rock of Hope, a Swati LGBT advocacy group, "there is no legislation recognising LGBTIs or protecting the right to a non-heterosexual orientation and gender identity and as a result [LGBT people] cannot be open about their orientation or gender identity for fear of rejection and discrimination". Homosexuality is illegal in Eswatini, though this law is in practice unenforced. According to the 2021 Human Rights Practices Report from the US Department of State, "there has never been an arrest or prosecution for consensual same-sex conduct."
Lesbian, gay, bisexual, and transgender (LGBT) people in Uganda face severe challenges not experienced by non-LGBT residents. Both male and female forms of same-sex sexual activity are illegal in Uganda. Originally criminalised by British colonial laws introduced when Uganda became a British protectorate, these have been retained since the country gained its independence.
This is a list of notable events in the history of LGBT rights that took place in the 1960s.
National Coalition for Gay and Lesbian Equality and Another v Minister of Justice and Others is a decision of the Constitutional Court of South Africa which struck down the laws prohibiting consensual sexual activities between men. Basing its decision on the Bill of Rights in the Constitution – and in particular its explicit prohibition of discrimination based on sexual orientation – the court unanimously ruled that the crime of sodomy, as well as various other related provisions of the criminal law, were unconstitutional and therefore invalid.
The Lesbian and Gay Equality Project (LGEP), formerly known as the National Coalition for Gay and Lesbian Equality (NCGLE), is a non-profit, non-governmental organization in South Africa that focuses on the expansion of LGBT civil rights in South Africa and other countries in sub-Saharan Africa. It was co-founded by Zackie Achmat in 1994, and successfully lobbied for the inclusion of sexual orientation as a basis for non-discrimination laws in the country after the end of the apartheid period. The organization has continued to operate after South Africa officially legalized same-sex marriage in 2005. Its work includes "law reform, lobbying, litigation, advocacy, employment equity, leadership training and development."
Lesbian, gay, bisexual, and transgender (LGBT) people in Zambia face significant challenges not experienced by non-LGBT residents. Same-sex sexual activity is illegal for both men and women in Zambia. Formerly a colony of the British Empire, Zambia inherited the laws and legal system of its colonial occupiers upon independence in 1964. Laws concerning homosexuality have largely remained unchanged since then, and homosexuality is covered by sodomy laws that also proscribe bestiality. Social attitudes toward LGBT people are mostly negative and coloured by perceptions that homosexuality is immoral and a form of insanity. However, in recent years, younger generations are beginning to show positive and open minded attitudes towards their LGBT peers.
A sodomy law is a law that defines certain sexual acts as crimes. The precise sexual acts meant by the term sodomy are rarely spelled out in the law but are typically understood by courts to include any sexual act deemed to be "unnatural" or "immoral". Sodomy typically includes anal sex, oral sex, manual sex, and bestiality. In practice, sodomy laws have rarely been enforced against heterosexual couples, and have mostly been used to target homosexual couples.
Lesbian, gay, bisexual, and transgender (LGBT) people in the Cook Islands face some legal challenges not experienced by non-LGBT residents, but these challenges have gradually lessened in recent years. As of 1 June 2023, homosexual acts between men became legal in the Cook Islands after a vote by the Parliament of the Cook Islands. Female homosexual acts have never been illegal. Same-sex marriage is outlawed. Nevertheless, LGBT people do enjoy some limited legal protections, as employment discrimination on the basis of sexual orientation has been banned since 2013.
Lesbian, gay, bisexual, and transgender (LGBT) people in Grenada may face legal challenges not experienced by non-LGBT residents. The penal code makes same-sex acts on Grenada proper illegal with a punishment up to 10 years in prison, it also does not address discrimination or harassment on the account of sexual orientation or gender identity, nor does it recognize same sex unions in any form, whether it be marriage or partnerships. Household headed by same-sex couples are also not eligible for any of the same rights given to opposite-sex married couples.
Geldenhuys v National Director of Public Prosecutions and Others is a decision of the Constitutional Court of South Africa which struck down as unconstitutional a law which set the age of consent at 19 for homosexual sex but only 16 for heterosexual sex.
The Sexual Offences Act, 1957 is an act of the Parliament of South Africa which, in its current form, prohibits prostitution, brothel-keeping and procuring, and other activities related to prostitution. Before the law relating to sex offences was consolidated and revised by the Criminal Law Amendment Act, 2007, it also prohibited various other sex offences, including sex with children under the age of consent and sex with the mentally incompetent. As the Immorality Act it was infamous for prohibiting sex between a white person and a person of another race, until that prohibition was removed by a 1985 amendment.
This is a timeline of notable events in the history of lesbian, gay, bisexual and transgender people in South Africa.
Doe v. Commonwealth's Attorney of Richmond, 425 U.S. 901 (1976), is a decision by the Supreme Court of the United States which gave summary affirmation of a lower court ruling which upheld the U.S. state of Virginia's ban on homosexual sodomy.
This is a timeline of notable events in the history of non-heterosexual conforming people of African ancestry, who may identify as LGBTIQGNC, men who have sex with men, or related culturally specific identities. This timeline includes events both in Africa, the Americas and Europe and in the global African diaspora, as the histories are very deeply linked.
Jonathan Arthur Heher is a South African retired judge who served in the Supreme Court of Appeal from 2003 to 2013. Formerly an advocate and Senior Counsel in Johannesburg, he joined the bench in 1993 as a judge of the Transvaal Provincial Division.