Page:NCGLE v Minister of Home Affairs.djvu/49

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Ackermann J

based on human dignity, equality and freedom which, in my view, give clear expression to the growing concern for, understanding of, and sensitivity towards human diversity in general and to gays and lesbians and their relationships in particular. This is an important source from which to illuminate our understanding of the Constitution and the promotion of its informing norms.[1]

[49]The impact of section 25(5) is to reinforce harmful and hurtful stereotypes of gays and lesbians. At the heart of these stereotypes whether expressly articulated or not, lie misconceptions based on the fact that the sexual orientation of lesbians and gays is such that they have an erotic and emotional affinity for persons of the same sex and may give physical sexual expression thereto with same-sex partners:

  1. Section 39(1) provides in its relevant parts:

    “When interpreting the Bill of Rights, a court, tribunal or forum―

    (a) must promote the values that underlie an open and democratic society based on human dignity, equality and freedom;
    (c) may consider foreign law.”