Constituting Sexuality: The Struggle for Sexual Orientation in the South African Bill of Rights

Abstract

In this article, I focus upon the mobilization of a social group within the historic constitution-making process from which South Africa has now emerged. Unlike the western paradigm of rights, in South Africa 'human rights' has proven a central discourse deployed in the name of a majority which historically has been denied the most basic rights. In its new constitutional guise, the legitimacy of South African rights discourse is dependent upon its potential as a socially transformative instrument as a tool for nation building and the reparation of past injustices. At the same time, rights discourse is also invoked by self-described 'minorities' within South Africa, seeking protection from the actions of the majority. This creates an interesting dynamic between majoritarian and minority interventions. Moreover, South Africans have reached the culmination of a constitutional process which has been explicitly billed as inclusionary and participatory, in which the nation reached a 'consensus'. The pursuit of consensus in the articulation of rights though is itself problematic. It may well be crucial that South Africans identify with their new Constitution, and its Bill of Rights, to prevent the perception that rights are simply the product of an agreement between political elites. But, simultaneously, the protection of rights which do not enjoy popular support may be justified by the antimajoritarianism of rights claims, and constitutional players thus at times have been faced with constructing a consensus document which may not, in all respects, reflect popular opinion. These tensions manifest themselves in an array of different constitutional contexts. My focus, however, is upon only one specific and successful mobi-