National Coalition for Gay and Lesbian Equality and Another v Minister of Justice and Others/Sachs J

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Sachs J:

[107] Only in the most technical sense is this a case about who may penetrate whom where. At a practical and symbolical level it is about the status, moral citizenship and sense of self-worth of a significant section of the community. At a more general and conceptual level, it concerns the nature of the open, democratic and pluralistic society contemplated by the Constitution. In expressing my concurrence with the comprehensive and forceful judgment of Ackermann J, I feel it necessary to add some complementary observations on the broader matters. I will present my remarks — in a preliminary manner as befits their sweep and complexity — in the context of responding to three issues which emerged in the course of argument. The first concerns the relationship between equality and privacy, the second the connection between equality and dignity, and the third the question of the meaning of the right to be different in the open and democratic society contemplated by the Constitution.

Equality and Privacy

[108] It is important to start the analysis by asking what is really being punished by the anti-sodomy laws. Is it an act, or is it a person? Outside of regulatory control, conduct that deviates from some publicly established norm is usually only punishable when it is violent, dishonest, treacherous or in some other way disturbing of the public peace or provocative of injury. In the case of male homosexuality however, the perceived deviance is punished simply because it is deviant. It is repressed for its perceived symbolism rather than because of its proven harm. If proof were necessary, it is established by the fact that consensual anal penetration of a female is not criminalised. Thus, it is not the act of sodomy that is denounced by the law, but the so-called sodomite who performs it; not any proven social damage, but the threat that same-sex passion in itself is seen as representing to heterosexual hegemony.[1]

[109] The effect is that all homosexual desire is tainted, and the whole gay and lesbian community is marked with deviance and perversity. When everything associated with homosexuality is treated as bent, queer, repugnant or comical, the equality interest is directly engaged. People are subject to extensive prejudice because of what they are or what they are perceived to be, not because of what they do. The result is that a significant group of the population is, because of its sexual non-conformity, persecuted, marginalised and turned in on itself. I have no doubt that when the drafters of the Bill of Rights decided expressly to include sexual orientation in their list of grounds of discrimination that were presumptively unfair,[2] they had precisely these considerations in mind. There could be few stronger cases than the present for invoking the protective concern and regard offered by the Constitution.

[110] Against this background it is understandable that the applicants should urge this Court to base its invalidation of the anti-sodomy laws on the ground that they violated the equality provisions in the Bill of Rights. Less acceptable however, is the manner in which applicants treated the right to privacy, presenting it in their written argument[3] as a poor second prize to be offered and received only in the event of the Court declining to invalidate the laws because of a breach of equality. Their argument may be summarised as follows: privacy analysis is inadequate because it suggests that homosexuality is shameful and therefore should only be protected if it is limited to the private bedroom; it tends to limit the promotion of gay rights to the decriminalisation of consensual adult sex, instead of contemplating a more comprehensive normative framework that addresses discrimination generally against gays; and it assumes a dual structure — public and private — that does not capture the complexity of lived life, in which public and private lives determine each other, with the mobile lines between them being constantly amenable to repressive definition.[4]

[111] These concerns are undoubtedly valid. Yet, I consider that they arise from a set of assumptions that are flawed as to how equality and privacy rights interrelate and about the manner in which privacy rights should truly be understood; in the first place, the approach adopted by the applicants subjects equality and privacy rights to inappropriate sequential ordering, while secondly, it undervalues the scope and significance of privacy rights. The cumulative result is both to weaken rather than strengthen applicants’ quest for human rights, and to put the general development of human rights jurisprudence on a false track.

[112] I will deal first with the question of inappropriate separation of rights and sequential ordering, that is, with the assumption that in a case like the present, rights have to be compartmentalised and then ranked in descending order of value. The fact is that both from the point of view of the persons affected, as well as from that of society as a whole, equality and privacy cannot be separated, because they are both violated simultaneously by anti-sodomy laws. In the present matter, such laws deny equal respect for difference, which lies at the heart of equality, and become the basis for the invasion of privacy. At the same time, the negation by the state of different forms of intimate personal behaviour becomes the foundation for the repudiation of equality. Human rights are better approached and defended in an integrated rather than a disparate fashion. The rights must fit the people, not the people the rights. This requires looking at rights and their violations from a persons-centred rather than a formula-based position, and analysing them contextually rather than abstractly.[5]

[113] One consequence of an approach based on context and impact would be the acknowledgement that grounds of unfair discrimination can intersect, so that the evaluation of discriminatory impact is done not according to one ground of discrimination or another, but on a combination of both,[6] that is, globally and contextually, not separately and abstractly.[7] The objective is to determine in a qualitative rather than a quantitative way if the group concerned is subjected to scarring[8] of a sufficiently serious nature as to merit constitutional intervention. Thus, black foreigners in South Africa might be subject to discrimination in a way that foreigners generally, and blacks as a rule, are not; it could in certain circumstances be a fatal combination. The same might possibly apply to unmarried mothers, or homosexual parents, where nuanced rather than categorical approaches would be appropriate. Alternatively, a context rather than category-based approach might suggest that overlapping vulnerability is capable of producing overlapping discrimination. A notorious example would be African widows, who historically have suffered discrimination as blacks, as Africans, as women, as African women, as widows and usually, as older people, intensified by the fact that they are frequently amongst the lowest paid workers.[9]

[114] Conversely, a single situation can give rise to multiple, overlapping and mutually reinforcing violations of constitutional rights. The case before us is in point. The group in question is discriminated against because of the one characteristic of sexual orientation. The measures that assail their personhood are clustered around this particular personal trait. Yet the impact of these laws on the group is of such a nature that a number of different protected rights are simultaneously infringed. In these circumstances it would be as artificial in law as it would be in life to treat the categories as alternative rather than interactive. In some contexts, rights collide and an appropriate balancing is required.[10] In others, such as the present, they inter-relate and give extra dimension to the extent and impact of the infringement. Thus, the violation of equality by the anti-sodomy laws is all the more egregious because it touches the deep, invisible and intimate side of people’s lives. The Bill of Rights tells us how we should analyse this interaction: in technical terms, the gross interference with privacy will bear strongly on the unfairness of the discrimination,[11] while the discriminatory manner in which groups are targeted for invasions of privacy will destroy any possibility of justification for such invasions.[12]

[115] The depreciated value given in argument to invalidation on the grounds of privacy, treating it as a poor relation of equality, was a result of adopting an impoverished version of the concept of privacy itself. In my view, the underlying assumptions about privacy were doubly flawed, being far too narrow in their understanding, on the one hand, and far too wide in their implications, on the other. I will deal first with the undue narrowness of understanding.

[116] There is no good reason why the concept of privacy should, as was suggested, be restricted simply to sealing off from state control what happens in the bedroom, with the doleful sub-text that you may behave as bizarrely or shamefully as you like, on the understanding that you do so in private.[13] It has become a judicial cliché to say that privacy protects people, not places.[14] Blackmun J in Bowers, Attorney General of Georgia v. Hardwick et al[15] made it clear that the much-quoted “right to be left alone” should be seen not simply as a negative right to occupy a private space free from government intrusion, but as a right to get on with your life, express your personality and make fundamental decisions about your intimate relationships without penalisation.[16] Just as “liberty must be viewed not merely ‘negatively or selfishly as a mere absence of restraint, but positively and socially as an adjustment of restraints to the end of freedom of opportunity’ ”,[17] so must privacy be regarded as suggesting at least some responsibility on the state to promote conditions in which personal self-realisation can take place.

[117] The emerging jurisprudence of this Court is fully consistent with such an affirmative approach. In Bernstein and Others v Bester and Others NNO Ackermann J pointed out that the scope of privacy had been closely related to the concept of identity and that “rights, like the right to privacy, are not based on a notion of the unencumbered self, but on the notion of what is necessary to have one’s autonomous identity … In the context of privacy this means that it is … the inner sanctum of the person such as his/her family life, sexual preference and home environment which is shielded from erosion by conflicting rights of the community.”[18] Viewed this way autonomy must mean far more than the right to occupy an envelope of space in which a socially detached individual can act freely from interference by the state. What is crucial is the nature of the activity, not its site. While recognising the unique worth of each person,[19] the Constitution does not presuppose that a holder of rights is as an isolated, lonely and abstract figure possessing a disembodied and socially disconnected self. It acknowledges that people live in their bodies, their communities, their cultures, their places and their times. The expression of sexuality requires a partner, real or imagined. It is not for the state to choose or to arrange the choice of partner, but for the partners to choose themselves.

[118] At the same time, there is no reason why the concept of privacy should be extended to give blanket libertarian permission for people to do anything they like provided that what they do is sexual and done in private. In this respect, the assumptions about privacy rights are too broad. There are very few democratic societies, if any, which do not penalise persons for engaging in inter-generational, intra-familial, and cross-species sex, whether in public or in private. Similarly, in democratic societies sex involving violence, deception, voyeurism, intrusion or harassment is punishable (if not always punished), or else actionable, wherever it takes place (there is controversy about prostitution and sado-masochistic and dangerous fetishistic sex).[20] The privacy interest is overcome because of the perceived harm.

[119] The choice is accordingly not an all-or-nothing one between maintaining a spartan normality, at the one extreme, or entering what has been called the post-modern supermarket of satisfactions, at the other.[21] Respect for personal privacy does not require disrespect for social standards.[22] The law may continue to proscribe what is acceptable and what is unacceptable even in relation to sexual expression and even in the sanctum of the home, and may, within justifiable limits, penalise what is harmful and regulate what is offensive. What is crucial for present purposes is that whatever limits are established they do not offend the Constitution.

Equality and Dignity

[120] It will be noted that the motif which links and unites equality and privacy, and which, indeed, runs right through the protections offered by the Bill of Rights, is dignity.[23] This Court has on a number of occasions emphasised the centrality of the concept of dignity and self-worth to the idea of equality.[24] In an interesting argument,[25] the Centre for Applied Legal Studies (the Centre) has mounted a frontal challenge to this approach, arguing that the equality clause is intended to advance equality, not dignity, and that the dignity provisions in the Bill of Rights[26] should take care of protecting dignity. This was part of an invitation to the Court to re-visit its whole approach to equality jurisprudence, shifting from what the Centre called the defensive posture of reliance on unlawful discrimination under section 9(3)[27] to what it claimed to be an affirmative position of promoting equality under the broad provisions of section 9(1). The constitutional vocation of section 9(1),[28] it argued, had been reduced from that of the guarantor of substantive equality to that of a gatekeeper for claims of violation of dignity.

[121] Ackermann J has, I believe, dealt convincingly with the assertion that the Court has failed to promote substantive as opposed to formal equality. Indeed, his judgment is itself a good example of a refusal to follow a formal equality test, which could have based invalidity simply on the different treatment accorded by the law to anal intercourse according to whether the partner was male or female. Instead, the judgment has with appropriate sensitivity for the way anti-gay prejudice has impinged on the dignity of members of the gay community, focussed on the manner in which the anti-sodomy laws have reinforced systemic disadvantage both of a practical and a spiritual nature. Furthermore, it has done so not by adopting the viewpoint of the so-called reasonable lawmaker who accepts as objective all the prejudices of heterosexual society as incorporated into the laws in question, but by responding to the request of the applicants to look at the matter from the perspective of those whose lives and sense of self-worth are affected by the measures.[29] I would like to endorse, and I believe, strengthen this argument by referring to reasons of principle and strategy why, when developing equality jurisprudence, the Court should continue to maintain its focus on the defined anti-discrimination principles of sections 9(3), (4) and (5), which contain respect for human dignity at their core.

[122] The textual pointers against the Centre’s argument to the effect that section 9(1) should be interpreted so as to carry virtually the whole burden of securing equality, have been crisply identified in Ackermann J’s judgment.[30] There are, I believe, additional considerations supporting a structured focus on non-discrimination as the heart of implementable equality guarantees:[31] institutional aptness,[32] functional effectiveness,[33] technical discipline,[34] historical congruency,[35] compatibility with international practice[36] and conceptual sensitivity.

[123] By developing its equality jurisprudence around the concept of unfair discrimination this Court engages in a structured discourse centred on respect for human rights and non-discrimination.[37] It reduces the danger of over-intrusive judicial intervention in matters of broad social policy, while emphasising the Court’s special responsibility for protecting fundamental rights in an affirmative manner. It also diminishes the possibility of the Court being inundated by unmeritorious claims, and best enables the Court to focus on its special vocation, to use the techniques for which it has a special aptitude, and to defend the interests for which it has a particular responsibility. Finally, it places the Court’s jurisprudence in the context of evolving human rights concepts throughout the world, and of our country’s own special history.

[124] Contrary to the Centre’s argument, the violation of dignity and self-worth under the equality provisions can be distinguished from a violation of dignity under section 10 of the Bill of Rights.[38] The former is based on the impact that the measure has on a person because of membership of an historically vulnerable group that is identified and subjected to disadvantage by virtue of certain closely held personal characteristics[39] of its members; it is the inequality of treatment that leads to and is proved by the indignity. The violation of dignity under section 10, on the other hand, contemplates a much wider range of situations. It offers protection to persons in their multiple identities and capacities. This could be to individuals being disrespectfully treated, such as somebody being stopped at a roadblock. It also could be to members of groups subject to systemic disadvantage, such as farm workers in certain areas, or prisoners in certain prisons, such groups not being identified because of closely held characteristics, but because of the situation they find themselves in. These would be cases of indignity of treatment leading to inequality, rather than of inequality relating to closely held group characteristics producing indignity.

[125] Once again, it is my view that the equality principle and the dignity principle should not be seen as competitive but rather as complementary. Inequality is established not simply through group-based differential treatment, but through differentiation which perpetuates disadvantage and leads to the scarring of the sense of dignity and self-worth associated with membership of the group. Conversely, an invasion of dignity is more easily established when there is an inequality of power and status between the violator and the victim.

[126] One of the great gains achieved by following a situation-sensitive human rights approach is that analysis focuses not on abstract categories, but on the lives as lived and the injuries as experienced by different groups in our society. The manner in which discrimination is experienced on grounds of race or sex or religion or disability varies considerably — there is difference in difference. The commonality that unites them all is the injury to dignity imposed upon people as a consequence of their belonging to certain groups. Dignity in the context of equality has to be understood in this light. The focus on dignity results in emphasis being placed simultaneously on context, impact and the point of view of the affected persons. Such focus is in fact the guarantor of substantive as opposed to formal equality.

[127] As Marshall J reminds us, “… the lessons of history and experience are surely the best guide as to when, and with respect to what interests, society is likely to stigmatise individuals as members of an inferior caste or view them as not belonging to the community. Because prejudice spawns prejudice, and stereotypes produce limitations that confirm the stereotype on which they are based, a history of unequal treatment requires sensitivity to the prospect that its vestiges endure … as in many important legal distinctions, ‘a page of history is worth a volume of logic’ ”.[40] In the case of gays, 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.

[128] This special vulnerability of gays and lesbians as a minority group whose behaviour deviates from the official norm is well brought out by Cameron in the germinal article to which my learned colleague refers.[41] Gays constitute a distinct though invisible section of the community that has been treated not only with disrespect or condescension but with disapproval and revulsion; they are not generally obvious as a group, pressurised by society and the law to remain invisible;[42] their identifying characteristic combines all the anxieties produced by sexuality with all the alienating effects resulting from difference; and they are seen as especially contagious or prone to corrupting others. None of these factors applies to other groups traditionally subject to discrimination, such as people of colour or women, each of whom, of course, have had to suffer their own specific forms of oppression. In my view, the learned author is quite correct when he concludes that precisely because neither power nor specific resource allocation are at issue, sexual orientation becomes a moral focus in our constitutional order. For this same reason, the question of dignity is in this context central to the question of equality.

[129] At the heart of equality jurisprudence is the rescuing of people from a caste-like status and putting an end to their being treated as lesser human beings because they belong to a particular group. The indignity and subordinate status may flow from institutionally imposed exclusion from the mainstream of society or else from powerlessness within the mainstream; they may also be derived from the location of difference as a problematic form of deviance in the disadvantaged group itself, as happens in the case of the disabled.[43] In the case of gays it comes from compulsion to deny a closely held personal characteristic. To penalise people for being what they are is profoundly disrespectful of the human personality and violatory of equality. This aspect would not be well captured, if at all, by the Centre’s approach, which falls to be rejected.

The Treatment of Difference in an Open Society

[130] Although the Constitution itself cannot destroy homophobic prejudice it can require the elimination of public institutions which are based on and perpetuate such prejudice. From today a section of the community can feel the equal concern and regard of the Constitution and enjoy lives less threatened, less lonely and more dignified. The law catches up with an evolving social reality. A love that for a number of years has dared openly to speak its name in bookshops, theatres, film festivals and public parades, and that has succeeded in becoming a rich and acknowledged part of South African cultural life, need no longer fear prosecution for intimate expression. A law which has facilitated homophobic assaults and induced self-oppression, ceases to be. The courts, the police and the prison system are enabled to devote the time and resources formerly spent on obnoxious and futile prosecutions, to catching and prosecuting criminals who prey on gays and straights alike. Homosexuals are no longer treated as failed heterosexuals but as persons in their own right.

[131] Yet, in my view the implications of this judgment extend well beyond the gay and lesbian community. It is no exaggeration to say that the success of the whole constitutional endeavour in South Africa will depend in large measure on how successfully sameness and difference are reconciled, an issue central to the present matter.

[132] The present case shows well that equality should not be confused with uniformity; in fact, uniformity can be the enemy of equality. Equality means equal concern and respect across difference. It does not pre-suppose the elimination or suppression of difference. Respect for human rights requires the affirmation of self, not the denial of self. Equality therefore does not imply a levelling or homogenisation of behaviour but an acknowledgment and acceptance of difference.[44] At the very least, it affirms that difference should not be the basis for exclusion, marginalisation, stigma and punishment. At best, it celebrates the vitality that difference brings to any society.

[133] Section 9 of the Constitution is unambiguous: discrimination on the grounds of being gay or lesbian, is presumptively unfair and a violation of fundamental rights. This judgment holds that in determining the normative limits of permissible sexual conduct, homosexual erotic activity must be treated on an equal basis with heterosexual, in other words, that the same-sex quality of the conduct must not be a consideration in determining where and how the law should intervene. Commentators have suggested that respect for the equality principle goes further in two respects. The first is that the gay and lesbian community must have full access to decision-making on the questions at issue, so that their experiences, sense of right and wrong and proposals for effective law-making are given equal consideration when the outcome is determined[45]. Secondly, the selection of issues for investigation must not be selected and treated on the basis of stereotypes and prejudice. It is not necessary to pronounce on these complex issues in this case.

[134] The acknowledgment and acceptance of difference is particularly important in our country where group membership has been the basis of express advantage and disadvantage. The development of an active rather than a purely formal sense of enjoying a common citizenship depends on recognising and accepting people as they are. The concept of sexual deviance needs to be reviewed. A heterosexual norm was established, gays were labelled deviant from the norm and difference was located in them.[46] What the Constitution requires is that the law and public institutions acknowledge the variability of human beings and affirm the equal respect and concern that should be shown to all as they are. At the very least, what is statistically normal ceases to be the basis for establishing what is legally normative. More broadly speaking, the scope of what is constitutionally normal is expanded to include the widest range of perspectives and to acknowledge, accommodate and accept the largest spread of difference. What becomes normal in an open society, then, is not an imposed and standardised form of behaviour that refuses to acknowledge difference, but the acceptance of the principle of difference itself, which accepts the variability of human behaviour.

[135] The invalidation of anti-sodomy laws will mark an important moment in the maturing of an open democracy based on dignity, freedom and equality. As I have said, our future as a nation depends in large measure on how we manage difference. In the past difference has been experienced as a curse, today it can be seen as a source of interactive vitality. The Constitution acknowledges the variability of human beings (genetic and socio-cultural), affirms the right to be different, and celebrates the diversity of the nation.[47]

[136] A state that recognises difference does not mean a state without morality or one without a point of view. It does not banish concepts of right and wrong, nor envisage a world without good and evil. It is impartial in its dealings with people and groups, but is not neutral in its value system. The Constitution certainly does not debar the state from enforcing morality. Indeed, the Bill of Rights is nothing if not a document founded on deep political morality.[48] What is central to the character and functioning of the state, however, is that the dictates of the morality which it enforces, and the limits to which it may go, are to be found in the text and spirit of the Constitution itself.[49]

[137] The fact that the state may not impose orthodoxies of belief systems on the whole of society has two consequences.[50] The first is that gays and lesbians cannot be forced to conform to heterosexual norms; they can now break out of their invisibility and live as full and free citizens of South Africa. The second is that those persons who for reasons of religious or other belief disagree with or condemn homosexual conduct are free to hold and articulate such beliefs. Yet, while the Constitution protects the right of people to continue with such beliefs, it does not allow the state to turn these beliefs — even in moderate or gentle versions — into dogma imposed on the whole of society.

[138] In my view, the decision of this Court should be seen as part of a growing acceptance of difference in an increasingly open and pluralistic South Africa. It leads me to hope that the emancipatory effects of the elimination of institutionalised prejudice against gays and lesbians will encourage amongst the heterosexual population a greater sensitivity to the variability of the human kind. Having made these observations, I express my full concurrence in Ackermann J’s judgment and order.

  1. As Foucault commented in a celebrated formulation:

    “As defined by the ancient civil or canonical codes, sodomy was a category of forbidden acts, their perpetrator was nothing more than the juridical subject of them. The nineteenth-century homosexual became a personage, a past, a case history, and a childhood, in addition to being a type of life, a life form, and a morphology, with an indiscreet anatomy and possibly a mysterious physiology. Nothing that went into his total composition was unaffected by his insidious and indefinitely active principle; written immodestly on his face and body because it was a secret that always gave itself away. It was consubstantial with him, less as a habitual sin than as a singular nature. We must not forget that the psychological, psychiatric, medical category of homosexuality was constituted from the moment it was characterised — Westphal’s famous article of 1870 on ‘contrary sexual relations’ can stand as its date of birth — less by a type of sexual relations than by a certain quality of sexual sensibility, a certain way of inverting the masculine and the feminine in oneself. Homosexuality appeared as one of the forms of sexuality when it was transposed from the practice of sodomy onto a kind of interior androgyny, a hermaphrodism of the soul. The sodomite had been a temporary aberration, the homosexual was now a species.” Foucault The History of Sexuality Volume One: An Introduction (1978) in Pantazis “The Problematic Nature of Gay Identity” (1996) 12 SA Journal of Human Rights 291 at 298.

  2. Section 9 of the Constitution provides:
    “(1)   Everyone is equal before the law and has the right to equal protection and benefit of the law.
    (2)   Equality includes the full and equal enjoyment of all rights and freedoms. To promote the achievement of equality, legislative and other measures designed to protect or advance persons, or categories of persons, disadvantaged by unfair discrimination may be taken.
    (3)   The state may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth.
    (4)   No person may unfairly discriminate directly or indirectly against anyone on one or more grounds in terms of subsection (3). National legislation must be enacted to prevent or prohibit unfair discrimination.
    (5)   Discrimination on one or more of the grounds listed in subsection (3) is unfair unless it is established that the discrimination is fair.”
  3. In his oral presentation counsel for the applicants indicated that his concern was not with the privacy argument in itself, but the way in which the judgment on privacy might be couched. It is to this concern that I address myself.
  4. See Pantazis above n 1 and Cameron “Sexual Orientation and the Constitution: A Test Case for Human Rights” (1993) 110 SA Law Journal 450.
  5. It was in this spirit that L’Heureux-Dubé J in Egan v. Canada (1995) 29 CRR (2d) 79 at 120 remarked:

    “In reality, it is no longer the ‘grounds’ that are dispositive of the question of whether discrimination exists, but the social context of the distinction that matters. [C]ontext is of primary importance and that abstract ‘grounds of distinction’ are simply an indirect method to achieve a goal which could be achieved more simply and truthfully by asking the direct question: ‘Does this distinction discriminate against this group of people?’ ”

  6. This approach seems to be contemplated by the words “on one or more grounds” in section 9(3). See n 2 above.
  7. Critical race feminists are at the forefront of the movement towards a contextual treatment and understanding of the lives of those who face multiple discrimination. A major thrust of the critical race genre is to focus on the multileveled identities and multiple consciousness of women of colour, in particular, who are often discriminated against on the basis of race, gender and economic class. In doing so, critical race feminism draws attention to the need for conscious consideration of fundamental rights within the context of persons whose identities may involve the intersection of race, gender, class, sexual orientation, physical disadvantage or other characteristics which often serve as the basis for unfair discrimination. See, for example, a recent anthology: Wing (ed) Critical Race Feminism, a reader (New York University Press, New York and London 1997).
  8. One of the many complex forms of scarring was famously described by Du Bois thus:

    “It is a peculiar sensation, this double-consciousness, this sense of always looking at one’s self through the eyes of others, of measuring one’s soul by the tape of the world that looks on in amused contempt and pity. One ever feels his twoness — an American, a Negro.” Du Bois The Souls of Black Folk: Essays and Sketches (Dado, Mead and New York, 1979) at 3 quoted in Minnow Making all the Difference: Inclusion, Exclusion, and American Law (Cornell University Press, Ithaca and London, 1990) at 68.

    Williams refers to the same near schizophrenic experience speaking of:

    “… the phenomenon of multiple consciousness, multiple voice, doublevoicedness — the shifting consciousness which is the daily experience of people of color and of women. When I was younger, I use to associate that dreamy, many sided feeling of the world with fears that I was schizophrenic. Now that I am older (and postmodern) I think that there is much sanity in that world-view. If indeed we are mirrors of each other in this society, if I have a sense of self-concept that is in any way whatsoever dependent upon the regard of others, upon the looks that I sometimes get in other people’s eyes as judgment of me if these others indeed supply some part of my sense of myself, then it makes a certain amount of social sense to be in touch with, rather than unconscious of, that doubleness of myself, that me that stares back in the eyes of others.” in Williams “Response to Mari Matsuda” (1989) 11 Womens Rights Law Reporter 11 at 11.

  9. See Simons African Women: Their Legal Status in South Africa C Hurst & Co, London 1968) at 285:

    “Women carry a double burden of disabilities. They are discriminated against on the grounds of both sex and race. The two kinds of discrimination interact and reinforce each other.” See generally the chapter on “Widows in Distress”.

  10. See Du Plessis and Others v De Klerk and Another 1996 (5) BCLR 658 (CC); 1996 (3) SA 850 (CC) at para 55, per Kentridge AJ:

    “A claim for defamation, for instance, raises a tension between the right to freedom of expression and the right to dignity.”

  11. See section 9(3) above n 2.
  12. Section 36 reads:

    “(1) The rights in the Bill of Rights may be limited only in terms of law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, …”

  13. The judgment of Ackermann J above at paras 29–32 helpfully explains the context in which Cameron came to make the distinction between equality and privacy. It also contains trenchant observations on the importance of protecting private intimacy with which I fully associate myself.
  14. The phrase was first coined by Stewart J in Katz v United States 389 US 347, 351 (1967). See Mistry v Interim National Medical and Dental Council of South Africa and Others 1998 (7) BCLR 880 (CC) at para 21. See also n 18 below.
  15. 478 U.S. 186 (1985).
  16. Id at 205–14:

    “We protect the decision whether to have a child because parenthood alters so dramatically an individual’s self-definition, not because of demographic considerations or the Bible’s command to be fruitful and multiply.

    The fact that individuals define themselves in a significant way through their intimate sexual relationships with others suggests, in a Nation as diverse as ours, that there may be many ‘right’ ways of conducting those relationships, and that much of the richness of a relationship will come from the freedom an individual has to choose the form and nature of these intensely personal bonds.

    ‘The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man’s spiritual nature, of his feelings and of his intellect. They knew that only a part of the pain, pleasure and satisfactions of life are to be found in material things. They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations.’ [Quoting Stanley v Georgia 394 U.S. 557 (1969) at 564.]

    [D]epriving individuals of the right to choose for themselves how to conduct their intimate relationships poses a far greater threat to the values most deeply rooted in our Nation’s history than tolerance of nonconformity could ever do.”

  17. Brennan “Reason, Passion, and the Progress of the Law” The Forty-Second Annual Benjamin N. Cardozo Lecture, (1988) 10:3 Cardozo Law Review 1 at 10, quoting Cardozo The Paradoxes of Legal Science (1928) at 118.
  18. 1996 (4) BCLR 449 (CC); 1996 (2) SA 751 (CC) at paras 65 and 67 quoting Forst at n 90. The learned judge went on to observe that:

    “[T]his implies that community rights and the rights of fellow members place a corresponding obligation on a citizen, thereby shaping the abstract notion of individualism towards identifying a concrete member of civil society. Privacy is acknowledged in the truly personal realm, but as a person moves into communal relations and activities … the scope of personal space shrinks accordingly.”

    It should be noted that personal space is not equated with physical space, although there can be a relation between the two. See Mistry above n 14 at para 21.

  19. Prinsloo v Van der Linde and Another 1997 (6) BCLR 759 (CC); 1997 (3) SA 1012 (CC) at para 31.
  20. For a psychoanalyst’s view see Young “Is ‘Perversion’ Obsolete?” (1996) Psychology in Society (PINS) (21) 5 at 12. He argues that the concept of perversion gave way to that of pluralism, but that there are still limits to what is acceptable in sexual behaviour.
  21. Id at 13.
  22. See also para 133 below.
  23. O’Regan J comments in S v Makwanyane and Another 1995 (6) BCLR 665 (CC); 1995 (3) SA 391 (CC) at para 328:

    “The importance of dignity as a founding value of the new Constitution cannot be overemphasised. Recognising a right to dignity is an acknowledgement of the intrinsic worth of human beings: human beings are entitled to be treated as worthy of respect and concern. This right therefore is the foundation of many of the other rights that are specifically entrenched in Chapter 3.”

  24. President of the Republic of South Africa and Another v Hugo 1997 (6) BCLR 708 (CC); 1997 (4) SA 1 (CC) at para 41; Prinsloo v van der Linde and Another above n 19 at paras 31–3; Harksen v Lane NO and Others 1997 (11) BCLR 1489; 1998 (1) SA 300 (CC) at para 50.
  25. In S v Mhlungu and Others 1995 (3) SA 867 (CC); 1995 (7) BCLR 793 (CC) at para 129, I had occasion to refer to the importance of “… a principled judicial dialogue, in the first place between members of this Court, then between our Court and other courts, the legal profession, law schools, Parliament, and, indirectly, with the public at large.” The critique by the Centre is to be welcomed, even though normally such generalised observations could be expected to be made in journal articles rather than through amici arguments.
  26. Section 10 provides:

    “Everyone has inherent dignity and the right to have their dignity respected and protected.”

  27. Above n 2.
  28. Id.
  29. Ackermann J above at paras 20–27 and paras 58–64.
  30. See above at paragraphs 15–19. It should be noted that the question of substantive socio-economic claims has been directly attended to by means of the express inclusion of a number of socio-economic rights in the Bill of Rights coupled with an indication of the responsibility of the legislature to ensure their realisation within resource possibilities. See sections 26 (housing), 27 (health care, food, water and social security) and 29 (education) of the 1996 Constitution.
  31. “We promote equality by reducing discrimination, and we reduce discrimination by reducing the gap between advantage and historic, arbitrary disadvantage.” See Abella AJ in R v M (C) (1995) 30 CRR (2d) 112 at 119.
  32. See Nowak and Rotunda Constitutional Law 5 ed (West Publishing Company, St. Paul Minn 1995) at 601.
  33. Hogg comments:

    “A study prepared in 1988, only three years after the coming into force of s 15 … found 591 cases (two-thirds of which were reported in full) in which a law had been challenged on the basis of s 15. Most of the challenges seemed unmeritorious, and most were unsuccessful; but the absence of any clear standards for the application of s 15 encouraged lawyers to keep trying to use s. 15 whenever a statutory distinction worked to the disadvantage of a client.” in Hogg Constitutional Law of Canada 3 ed (Carswell Professional Publishing, Canada 1992) at 1162.

  34. Sections 9(3), (4) and (5) of the 1996 Constitution provide the structure for focused and candid judicial analysis.
  35. The extensive list of grounds of discrimination specifically enumerated in section 9(3) underlines the special weight given by the Bill of Rights to combatting unfair discrimination in the many guises it has been wont to adopt.
  36. Far from the concept of non-discrimination being weak and negative, Sieghart refers to it as possibly the strongest principle of all to be found in international human rights law. See Sieghart The International Law of Human Rights (Clarendon Press, Oxford 1983), referred to in In re: the Education Bill of 1995 (Gauteng) 1996 (4) BCLR 537 (CC); 1996 (3) SA 165 (CC) at para 71.
  37. See the case of Andrews v Law Society of British Columbia (1989) 30 CRR (2d) 193, a landmark in equality jurisprudence.
  38. See above n 26.
  39. An apt phrase used by Iacobucci J in Egan v Canada above n 5 at 157.
  40. City of Cleburn Text. v Cleburn Living Center (1985) 473 US 432 at 473, quoting Holmes J in New York Trust Co. et. al. v Eisner (1921) 256 U.S. 345 at 349. The stereotyping in itself need not result in discrimination. The stereotype of the level-headed, unemotional man as being the best person to hold positions of leadership, has served many men well enough. It is when stereotypes are coupled with disadvantage that they become constitutionally offensive. Such disadvantage may take material forms, but need not do so; the Bill of Rights recognises that we do not live by bread alone. Indeed, there is no evidence before us that gays are either wealthier or poorer than the rest of society. Nor are they as individuals necessarily less represented than straights in the corridors of political, economic, social, cultural, judicial or security force power. The disadvantage they suffer comes not from a consequence of prejudice, it comes from prejudice itself. The complexity of the problems relating to stereotyping is illustrated by the contrasting positions adopted in Hugo above n 24 by Kriegler J at paras 80–86 and O’Regan J at para 111.
  41. See Ackermann J above at para 20.
  42. Law “Homosexuality and the Social Meaning of Gender” (1988) Wisconsin Law Review 187 at 212, quoted in Cameron above n 4 at 459. comments:

    “The closet metaphor is more powerful for gays, since heterosexism demands that they deny their identity and central life relationships. Gender, by contrast, is visible, like race, and women confront powerlessness, not invisibility.”

  43. See generally Minow above n 8.
  44. See Littleton in Reconstructing Sexual Equality (1987) 75 California Law Review 1279 at 1285 where she introduces an approach to reconstructing equality based on the premise of acceptance. This model focuses on creating symmetry in the lived-out experiences of all members of society by eliminating the unequal consequences arising from difference.
  45. The theme of equality of voice is brought out by Dworkin in “Equality, Democracy and Constitution” (1990) Vol XXVIII, No. 2 Alberta Law Review 324 at page 337–41 where he argues that:

    “In a genuine democracy, the people govern not statistically but communally … [w]hen we insist that a genuine democracy must treat everyone with equal concern, we take a decisive step towards a deeper form of collective action in which ‘we the people’ is understood to comprise not a majority but everyone acting communally … but the idea that in an integrated community the collective life cannot include moulding the judgments of its individual members as distinct from what they do, has a distinct near-definitional importance because it sets minimal conditions for any community, of any kind, that aspires to integration rather than to monolith … If the collective ambition is selective and discriminatory — if it aims only to eliminate certain beliefs collectively judged wrong or degrading — then it destroys integration for those citizens who are the objects of reform …”

    Trakman argues similarly in “Section 15: Equality? Where” (1995) 6:4 Constitutional Forum 112 at 121.

    “If Section 15 [the equality clause in the Charter of Rights] has meaning, that meaning resides in the condition of communal life to which equality is directed. That condition presupposes that all persons within society are entitled to participate in that communal life with comparative equality. This condition of equality does not require that everyone share exactly equally in the social ‘good’. Equality entitles different segments of society to enjoy different qualities of lives with comparative, not symmetrical, equality. Comparative equality also means that no one segment of society is entitled to define the quality of the ‘good’ life for all in the image of itself. Whatever its object, the legislature in a democratic society is disentitled to identify itself with the interests of select communities so as to produce comparative inequality for other communities.”

  46. Minow above n 8 argues that equality for those deemed different is precluded by five unstated and unacceptable assumptions namely that: Difference is intrinsic not a comparison; the norm need not be stated; the observer can see without a perspective; other perspectives are irrelevant; and the status quo is natural, uncoerced and good. Her focus was principally on disability rights, but the critique would seem to apply to the manner in which gay conduct has been described.
  47. The Preamble of the Constitution reads: “… believe that South Africa belongs to all who live in it, united in our diversity.” There are many provisions that deal with associational, cultural, religious and language rights as well as rights relating to belief and expression, all of which highlight the rich diversity of our country. See for example sections 6, 18, 29, and 31 of the Constitution. See also Gauteng Education above n 36 at paras 49 and 52.
  48. See Robertson and Merrils Human Rights in Europe 3 ed (1993) quoted in Coetzee v Government of the Republic of South Africa 1995 (10) BCLR 1382 (CC); 1995 (4) SA 631 (CC) at n 66.
  49. See Abella AJ above n 31 at page 639:

    “When governments define the ambits of morality, as they do when they enunciate laws, they are obliged to do so in accordance with constitutional guarantees, not with unwarranted assumptions.”

  50. See S v Lawrence 1997 (10) BCLR 1337 (CC); 1997 (4) SA 1176 (CC) at paras 148 and 179.