Substantive Equality and Sexual Orientation: Twenty Years of Gay and Lesbian Rights Adjudication Under the South African Constitution

Abstract

One of the exceptional elements of the South African Equality Clause is its novel and progressive inclusion of anti-discrimination protections for lesbians and gay men. The prohibition of discrimination based on sexual orientation is particularly important because it occurred — for the first time in any national constitution — as a result of the closely watched drafting of South Africa’s historic “human rights” Constitution. The South African Constitution advanced the hopes of international gay rights advocates and set a benchmark for future constitutional drafters. Over the last two decades, the Constitutional Court of South Africa decriminalized same-sex sexual activity, required equal treatment of same-sex life partners in areas of immigration and government benefits, and affirmed the fundamental validity of same-sex relationships, including recognition of full marriage equality. The Court’s opinions included express affirmations of the dignity and equality of gays and lesbians in an unbroken series of unanimous, pro-gay decisions. But although twenty years have passed since sexual orientation discrimination was prohibited by the Equality Clause, its practical effect has been markedly inadequate to achieve the safety and social equality of LGBT persons in South Africa. In sharp contrast to its expansive textual protections and progressive jurisprudence, the lived reality of South African gays and lesbians, particularly in poorer communities, is typified by condemnation, discrimination, and homophobic violence. Hence, the Equality Clause is a symbol of both the progressive aims of the post-apartheid Constitution and the appalling gulf between those aims and reality. Examining the historical successes and failures of the Constitution’s sexual orientation protections highlights three categories of insights drawn from the last two decades of constitutional rights in South Africa. These lessons include an encouraging insight about novel and progressive elements in the drafting of modern constitutions; some modest claims about the capacity of courts to combat inequality based on sexual orientation despite the limitations of purely legal victories; and a hopeful affirmation of the value of even unrealized constitutional aspirations for the fields of comparative constitutionalism and gay and lesbian equality.