Page:NCGLE v Minister of Home Affairs.djvu/37

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Ackermann J

[40]The better view, however, in my judgment, is that the discrimination in section 25(5) constitutes overlapping or intersecting discrimination on the grounds of sexual orientation and marital status, both being specified in section 9(3) and presumed to constitute unfair discrimination by reason of section 9(5) of the Constitution. As Sachs J correctly pointed out in the Sodomy case:[1]

“One consequence of an approach based on context and impact would be the acknowledgement that grounds of unfair discrimination can intersect, so that the evaluation of discriminatory impact is done not according to one ground of discrimination or another, but on a combination of both, that is globally and contextually, not separately and abstractly.” [footnotes omitted]

I also agree with the following observations by L’Heureux-Dubé J in Mossop:[2]

“This argument [of Lamer CJC] is based on an underlying assumption that the grounds of ‘family status’ and ‘sexual orientation’ are mutually exclusive. However … [i]t is increasingly recognized that categories of discrimination may overlap and that individuals may suffer historical exclusion on the basis of both race and gender, age and physical handicap, or some other combination. The situation of individuals who confront multiple grounds of disadvantage is particularly complex … Categorizing such discrimination as primarily racially oriented, or primarily gender-oriented, misconceives the reality of discrimination as it is experienced by individuals. Discrimination may be experienced on many grounds, and where this is the case, it is not really meaningful to assert that it is one or the other. It may be more realistic to recognize that both forms of

  1. Above n 34 at para 113.
  2. Above n 43 at 720 e–721 a. Although Lamer CJC, for the majority, did not find overlapping grounds in the case at hand, he expressly recognized the principle of overlapping grounds at 673 g–h of the judgment.