[25]In applying this test, the judge found that the impugned provisions unfairly differentiate between married persons and the applicants as same-sex life partners.[1] He was satisfied that the omission of the words complained of in the Child Care Act was inconsistent with the Constitution and invalid to the extent of such inconsistency.
[26]I agree. The unfair effect of the discrimination is squarely founded on an intersection of the grounds upon which the applicants’ complaint is based:[2] the applicants’ status as unmarried persons which currently precludes them from joint adoption of the siblings is inextricably linked to their sexual orientation. But for their sexual orientation which precludes them from entering into a marriage, they fulfil the criteria that would otherwise make them eligible jointly to adopt children in terms of the impugned legislation. In this respect, then, the provisions of section 17(a) and (c) are in conflict with section 9(3) of the Constitution.
- ↑ Above note 5 at para 11.
- ↑ See Brink v Kitshoff NO 1996 (4) SA 197 (CC); 1996 (6) BCLR (CC) at para 44; National Coalition v Minister of Home Affairs, above n 10 at para 40; and National Coalition v Minister of Justice, above n 24 at para 113.
