J and B v Director General: Department of Home Affairs and Others

The two applicants, referred to as J and B, were partners in a same-sex life partnership since 1995. In August 2001, the second applicant gave birth to twins conceived by artificial insemination using male sperm from an anonymous donor and female ova from the first applicant. The second applicant (birth mother) was registered as the mother without issue. However, the first applicant could not be registered as a parent because the regulations and forms under the Births and Deaths Registration Act only provided for registration of one male and one female parent. Section 5 of the Children's Status Act of 1987 only permitted children conceived by artificial insemination within the context of a heterosexual marriage to be deemed legitimate children of both the married woman and her husband. The applicants sought to have both of them registered as parents and challenged section 5 as unconstitutionally discriminatory.

• Whether section 5 of the Children's Status Act 82 of 1987 unfairly discriminates against same-sex life partners on the ground of sexual orientation by only extending parental recognition to married heterosexual couples in respect of children conceived by artificial insemination
• Whether reading in and striking out are appropriate remedies to cure the constitutional invalidity
• Whether the order should include permanent heterosexual life partners
• Whether the order of invalidity should be suspended to allow Parliament to amend the legislation

The Constitutional Court confirmed the declaration of constitutional invalidity with modifications. Section 5 of the Children's Status Act 82 of 1987 was declared inconsistent with the Constitution to the extent it contained the word "married" and did not include "or permanent same-sex life partner" after "husband". The word "married" was struck out wherever it appeared in section 5. The words "or permanent same-sex life partner" were read in after "husband" wherever it appeared in section 5. The concluding words of section 5(1)(a) "as if the gamete or gametes of that woman or her husband were used for such artificial insemination" were struck out. The respondents were ordered to pay the costs of the confirmation proceedings including the costs of the curatrix ad litem.

Section 5 of the Children's Status Act 82 of 1987, insofar as it limited parental recognition in artificial insemination cases to married heterosexual couples, constituted unfair discrimination on the ground of sexual orientation contrary to section 9(3) of the Constitution. The inability of same-sex partners to access the protections of section 5 was inextricably linked to their sexual orientation and their legal inability to marry. Such discrimination could not be justified under section 36 of the Constitution. Where a statutory provision unfairly discriminates by being under-inclusive, the appropriate remedy may be a combination of severance (striking out discriminatory words) and reading in (adding words to extend protection to the excluded group). Where reading in cures the constitutional defect, there is ordinarily no reason to suspend the order of invalidity as there is no lacuna left by the striking down of the provision. Courts should interfere with legislation as little as necessary, but may make consequential severances to ensure clarity and constitutional compliance.

The Court made several important observations beyond the strict legal holding: (1) Comprehensive legislation regularizing same-sex relationships is necessary and it is unsatisfactory for courts to grant piecemeal relief to the gay and lesbian community as aspects of their relationships are challenged. (2) The state has obligations under sections 7(2) and 8(1) of the Constitution to respect, protect, promote and fulfill rights in the Bill of Rights, which requires the executive and legislature to deal comprehensively and timeously with existing unfair discrimination against gays and lesbians. (3) It is not appropriate for courts to determine the details of relationships between same-sex partners or between such partners and their children - these are matters for the legislature. (4) The nature and detail of remedies fashioned by courts in discrimination cases do not bind the legislature, which remains free to fashion appropriate consequences of personal relationships in any manner consistent with the Constitution. (5) The Court noted the growing recognition of same-sex relationships in South African law and internationally, referencing legislative developments in various European countries. (6) The Court emphasized that where courts address unfair discrimination, remedies must be carefully tailored to the specific context and nature of the discrimination.

This case is a landmark judgment in the development of equality jurisprudence and protection of same-sex relationships in South African constitutional law. It extended parental recognition and rights to same-sex life partners in the context of artificial insemination, consistent with earlier jurisprudence on adoption (Du Toit) and immigration rights (National Coalition for Gay and Lesbian Equality v Minister of Home Affairs). The judgment reinforced the constitutional prohibition on unfair discrimination based on sexual orientation under section 9(3) of the Constitution. It also demonstrated the Court's willingness to use both severance and reading in as remedies where appropriate, while being mindful not to intrude excessively into the legislative sphere. Importantly, the Court called upon the legislature to enact comprehensive legislation to regularize same-sex relationships, noting that piecemeal judicial intervention was unsatisfactory and that the state had constitutional obligations under sections 7(2) and 8(1) to address systemic discrimination. The case affirmed that children's best interests under section 28(2) of the Constitution required recognition of same-sex parents where appropriate. The judgment formed part of a progressive series of decisions expanding rights for LGBTQ+ persons and contributed to the eventual recognition of same-sex marriage in South Africa.