Ending the Apartheid of the Closet: Sexual Orientation in the South African Constitutional Process
36 Pages Posted: 12 Jul 2007 Last revised: 22 Oct 2007
Without precedent in domestic or foreign law, the South African Constitution secured equal protection and benefit of law for its gay and lesbian citizens. This article suggests a three-part explanation, positing the interrelation of an historic, an ideological, and a procedural element. The stage for this unprecedented protection was set by the unique history of South Africa: the rise of gay and lesbian visibility contemporaneously with the post-apartheid reformulation of the country as a human rights state. Justification was provided by the examination of sexual orientation protections as a presumptive corollary of the ANC anti-discrimination ideology, and an autocratic constitutional drafting process codified progressive human rights standards despite uncertain claims of public support and ambiguous international law precedent.
While the constitutional drafting process was far from perfect, there are several ways in which inclusion of sexual orientation protections reflected some of the best aspects of the constitutional process. It reflected a commitment to human rights broadly defined, reflected liberal and progressive interpretation of international and foreign legal precedent, and represented a dramatic denial of the politics of division and acceptance of difference. Furthermore, while the efforts of gay rights advocates in the South African constitutional process offer little direct application in other countries, they set an important legal precedent. The human rights decisions of the South African Constitution are uniquely valued because of the nation's history. Hence, inclusion of gay rights discourse as a "universally accepted fundamental human right" ratifies the aspirations of gay and lesbian activists world wide and affirms South African claims that their Constitution creates a nation that "belongs to all who live in it, united in our diversity."
Keywords: South Africa, constitutional court, sexual orientation, gay rights
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