In Dausab v. Minister of Justice, (NA HC MD, June 21, 2024), a 3-judge panel of the High Court of Namibia held that the common law and statutory provisions that ban "sodomy" and "unnatural sexual offenses" unconstitutionally discriminate against gay men. The court said in part:
What emerges from the definition of sodomy is that the offense clearly and undoubtedly criminalises such sexual conduct between males.... What furthermore emerges is that various forms of sexual conduct, which have been held to constitute an offense, if committed by a male person with another male person are not regarded as criminal, if committed by a male person with a female person....
...[T]he impugned laws differentiate ... between male and female and between gay men and heterosexual men.... [T]he differentiation ... in so far as it criminalises anal sex between men and men but not between men and women, [is] based on one of the enumerated grounds set out in Article 10(2).... [I]n so far as the impugned laws differentiate between heterosexual men and gay men, it is not based on one of the enumerated grounds in Article 10(2)....
We have no qualms with counsel's argument that Article 10 does not make express reference to 'sexual orientation' as a ground of discrimination.... We, however, hold the view that the matter is not as simple as counsel portrays it to be, because the fact that a ground is not listed in Article 10(2) is not a license for the law to discriminate on that ground....
A press release by Human Dignity Trust has further background on the decision. [Thanks to Scott Mange for the lead.]
