Trailblazing LGBTQ Professor Misses Constitutional Court Nomination

Despite a brilliant academic legal career, David Bilchitz, an openly LGBTQ law professor, will not be recommended by the Judicial Service Commission (JSC) as a judge of South Africa’s Constitutional Court.

On Monday, the JSC interviewed Bilchitz in Johannesburg as one of four nominees for a Constitutional Court vacancy. Following the interview process, the commission was required to recommend at least four nominees to President Ramaphosa to fill the post.

Judges Matter, an organisation that monitors South Africa’s judiciary, described Bilchitz as “a trailblazing giant of the academic world,” while noting that his “experience of legal practice is limited.”

Very few openly LGBTQ judges in South Africa

In a protracted JSC interview, Bilchitz, a professor of fundamental rights and constitutional law at the University of Johannesburg, expressed the view that his identity would bring an element of diversity and LGBTQ representation to the Constitutional Court.

“What I can offer… is perhaps one element of diversity that hasn’t really been canvassed thus far and that is that when I was growing up, people with my sexual orientation were criminalised for having same-sex relationships and during my lifetime, the Constitution has fundamentally changed my life and that of others in the LGBTQ community,” he told the commission in response to a question from JSC commissioner Julius Malema.

He pointed out that “There are still very few openly LGBTQ judges in South Africa and, in fact, around the world.” Bilchitz referenced retired Constitutional Court Justice Edwin Cameron as an inspiration. The groundbreaking Cameron was the first, and remains the only, both openly gay and HIV-positive Constitutional Court justice in South Africa.

“I would hope that my appointment would in some sense advance LGBTQ representation,” said Bilchitz “and also perhaps serve as an indicator to the young lesbian woman I met last year from Katlehong and the transgender activist I met who was rejected from their religious community, whose families have refused to accept them and from whom they’ve been rejected and who opened up to me about their own pain, that the South African legal and political community seeks to embrace people with diverse sexual orientations.”

Lack of Experience as a Judge

Despite his impressive academic achievements in law, Bilchitz’s lack of substantial experience in court as a judge was a sticking point in his interview. While he’s recently served as an acting judge of the Constitutional Court, he has not yet produced a judgment. “You have all what it takes, prof, except this fundamental issue of experience,” said Malema.

Judges Matter, however, pointed out that many may view Bilchitz’s broad academic approach “as an advantage, as he is not trapped in the ossified thinking that sometimes besets judges who’ve only worked in the court system for long periods.”

“Indeed, some may view it as the Court returning to its roots. After all, there has never been an academic lawyer on the Court in over 15 years, even though the Constitution itself requires that there be a minimum of only 4 Court members who were previously judges,” pointed out the organisation.

In a social media statement, the JSC said it ultimately found that “one of the candidates did not meet the requirements” for appointment and abandoned this round of nominations.

“The JSC is required to recommend four candidates for each vacancy. Because only three candidates were found suitable, the JSC could not make a recommendation to the President,” explained the commission, which will readvertise the vacant post and restart the process.