determined the generosity of the protection that the Constitution offered. It was because the majority of South Africans had experienced the humiliating legal effect of repressive colonial conceptions of race and gender that they determined that henceforth the role of the law would be different for all South Africans. Having themselves experienced the indignity and pain of legally regulated subordination, and the injustice of exclusion and humiliation through law, the majority committed this country to particularly generous constitutional protections for all South Africans.
[10]These paradoxes illuminate the significance of the Constitution's promise of freedom from unfair discrimination on the ground of sexual orientation. For though oppression on the ground of sexual orientation was not paramount in the scheme of historical injustice, it formed part of it, and the negotiating founders deliberately committed our nation to a course that disavowed all forms of legalised oppression and injustice.[1] Instead of selective remediation of the badges of repression and dishonour, all criteria of unfair discrimination were
- ↑ Compare the position regarding gender discrimination as set out in Brink v Kitshoff NO 1996 (4) SA 197 (CC) para 44, per O'Regan J for the Court: ‘Although in our society discrimination on grounds of sex has not been as visible, nor as widely condemned, as discrimination on grounds of race, it has nevertheless resulted in deep patterns of disadvantage. These patterns of disadvantage are particularly acute in the case of black women, as race and gender discrimination overlap. That all such discrimination needs to be eradicated from our society is a key message of the Constitution.’
