Page:NCGLE v Minister of Home Affairs.djvu/42

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Ackermann J

[42]In the Sodomy case this Court dealt with the seriously negative impact that societal discrimination on the ground of sexual orientation has had, and continues to have, on gays and their same-sex partnerships,[1] concluding that gay men are a permanent minority in society and have suffered in the past from patterns of disadvantage.[2] Although the main focus of that judgment was on the criminalisation of sodomy and on other proscriptions of erotic expression between men, the conclusions regarding the minority status of gays and the patterns of discrimination to which they have been and continue to be subject are also applicable to lesbians. Society at large has, generally, accorded far less respect to lesbians and their intimate relationships with one another than to heterosexuals and their relationships. The sting of past and continuing discrimination against both gays and lesbians is the clear message that it conveys, namely, that they, whether viewed as individuals or in their same-sex relationships, do not have the inherent dignity and are not worthy of the human respect possessed by and accorded to heterosexuals and their relationships. This discrimination occurs at a deeply intimate level of human existence and relationality. It denies to gays and lesbians that which is foundational to our Constitution and the concepts of equality and dignity, which at this point are closely intertwined, namely that all persons have the same inherent worth and dignity as human beings, whatever their other differences may be. The denial of equal dignity and worth all too quickly and insidiously degenerates into a denial of humanity and leads to inhuman treatment by the rest of society in many other ways. This is deeply demeaning and frequently has the cruel effect of undermining the confidence and sense of self-worth and self-respect of lesbians and gays.

  1. Above n 34 at paras 20–27.
  2. Id at para 26(a).