2. Terms of Reference TOR 1 – Criminal law Term of reference 1 asks the ACJ to consider whether, and in what respects, State criminal law is consistent with international human rights law in its application to and effect on persons on the basis of sexual orientation and gender identity. – Introduction Perhaps the most egregious violation of international human rights law with regard to persons of diverse sexual orientation and gender is the existence of laws criminalising same sex sexual conduct between consenting adults. In 1998, the South African Constitutional Court in its decision invalidating laws prohibiting same sex sexual conduct between consenting adults, held: history and experience teach us that the scarring comes not from poverty or powerlessness, but from invisibility. It is the tainting of desire, it is the attribution of perversity and shame to spontaneous bodily affection, it is the prohibition of the expression of love, it is the denial of full moral citizenship in society because you are what you are, that impinges on the dignity and self-worth of a group. 55 The ACJ is of the view that such laws are an invasion of the rights of privacy, nondiscrimination and to freedom of expression. Such laws also express a profound contempt for the fundamental right to equality before, and protection of, the law. Equally, such laws often serve to stigmatise persons of diverse sexual orientation and gender identity by referring to same sex sexual conduct as ‘unnatural carnal intercourse’, ‘intercourse against the order of nature’, ‘unnatural desire’, ‘gross indecency’ etcetera. The ACJ notes that within the region, many such laws are remnants of a colonial past and represent the prejudices and morals of a different era, society and culture. It further notes that in many cases, such laws have since been repealed in those countries from whence they originated. – Advances Over the last five decades, there have been welcome advances in the area of decriminalisation. Negative provisions have been reformed by the legislature in Thailand (1957), New Zealand (1986), Australia (progressively from the 1960s to 1997) and Hong Kong (1991). Judicial reforms have also played a significant role. In 2005, judicial decisions in Fiji and Hong Kong declared anti-sodomy laws unconstitutional. 56 In 2007, the Nepalese Supreme Court held that a provision defining ‘unnatural behaviour’, which could be interpreted as criminalising same sex sexual conduct between consenting adults, was invalid, unconstitutional and in 55 National Coalition For Gay and Lesbian Equality v. Minister of Justice, [1998] {12} PCLR 1517 56 (Fiji) Dhirendra Nadan and another v. State, HAA 85 &86 Of 2005. (Hong Kong) Leung T C William Roy v. Secretary for Justice, CACV 317/2005. ACJ Report: Human Rights, Sexual Orientation and Gender Identity 19