South African Constitutional Court Cases on LGBTQ+ Rights

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Questions and Answers

Which international human-rights instrument includes the right to equality?

African Charter on Human and Peoples’ Rights

International Covenant on Civil and Political Rights

Universal Declaration of Human Rights (correct)

International Labour Organisation conventions

In the South African constitutional order, where does equality feature?

In section 9 of the Constitution

In section 36(1) of the Constitution

In section 39(1) of the Constitution

In the founding provision of the Constitution (correct)

Are people in reality equal?

No, people are not equal in any respect (correct)

Yes, people are equal in practical respects

No, people are equal in all practical respects

Yes, people are equal in all respects

Which type of discrimination occurs when a measure expressly differentiates against categories of persons in a way that is detrimental to a particular category?

Direct discrimination Signup and view all the answers

What is the burden of proof in cases of discrimination on non-listed grounds?

On the complainant Signup and view all the answers

What is the purpose of the limitation stage in the inquiry of unfair discrimination?

To apply the limitation clause Signup and view all the answers

What is the test for equality primarily aimed at preventing?

Arbitrary differentiation Signup and view all the answers

What is the reality of inequality?

It cannot be changed Signup and view all the answers

What do individuals strive for, according to the text?

To be well-performing Signup and view all the answers

What is equality, according to the text?

A myth Signup and view all the answers

What is the relationship between equality and the reality of inequality, according to the text?

They are contradictory Signup and view all the answers

What does the concept of formal equality mean?

Treating everyone the same regardless of their circumstances Signup and view all the answers

What is the focus of substantive equality?

Achieving equality of outcome Signup and view all the answers

What does the concept of corrective equality require?

Implementing remedial measures Signup and view all the answers

Which grounds of unfair discrimination are mentioned in Section 9(3) of the Constitution?

Religion, conscience, belief Signup and view all the answers

According to South African constitutional law, discrimination on the grounds listed in subsection (3) is considered unfair unless it is established that the discrimination is fair. This section also includes both formal and substantive equality. What is the purpose of the differentiation measure in order to determine whether it is fair or unfair?

To serve a legitimate government purpose Signup and view all the answers

In South African constitutional law, what is the significance of the Harksen v Lane case?

It established the test for equality Signup and view all the answers

According to South African constitutional law, what is the first question that needs to be asked when determining whether there is a violation of the right to equality?

Whether the challenged law or conduct differentiates between people or categories of people Signup and view all the answers

In South African constitutional law, what is required for discrimination to be considered unfair?

It must be objectively determined to be unfair Signup and view all the answers

Which two aspects formed the basis of minority protection?

The right to identity and the right against discrimination Signup and view all the answers

What do special arrangements for minority protection imply?

Equal rights for minorities Signup and view all the answers

What was the initially dominant view after World War II regarding minority protection?

Individual rights were sufficient for the protection of minority communities and their members Signup and view all the answers

What is the definition of a minority group?

A group with a non-dominant position in a state Signup and view all the answers

What is the risk faced by minority communities due to their numerical weakness?

They may easily fall prey to the misuse of political power by a majority-dominated government Signup and view all the answers

In which international treaties did the first express protection for minorities appear?

Treaties adopted after World War I Signup and view all the answers

What are the two requirements for ensuring true equality between a majority and minority?

Perfect equality in all aspects and renouncing national characteristics Signup and view all the answers

Study Notes

International Human Rights Instruments

The right to equality is included in various international human rights instruments, such as the Universal Declaration of Human Rights.

Equality in South African Constitutional Order

Equality features prominently in the South African Constitution, particularly in Section 9, which discusses both formal and substantive equality.

Reality of Equality

Despite legal provisions, social realities often reflect ongoing inequality among individuals.

Types of Discrimination

Discrimination that expressly differentiates against certain categories of persons in a detrimental way is known as direct discrimination.

Burden of Proof

In cases of discrimination on non-listed grounds, the burden of proof typically lies with the complainant to prove unfair discrimination.

Purpose of Limitation Stage

The limitation stage in inquiries of unfair discrimination aims to assess the justification of the discrimination if it is found to exist.

Test for Equality

The test for equality primarily seeks to prevent unfair discrimination by promoting equal treatment and opportunities.

Reality of Inequality

Individuals often struggle against various forms of inequality, impacting social justice and cohesion.

Individual Aspirations

Individuals strive for recognition, respect, and equality in society.

Definition of Equality

Equality is defined as having the same rights and opportunities, emphasizing both formal and substantive dimensions.

Relationship Between Equality and Inequality

There exists a complex relationship between the ideal of equality and the prevailing reality of inequality, where laws may not fully translate into equitable outcomes.

Concepts of Equality

Formal equality refers to equal treatment under the law without discrimination.
Substantive equality focuses on achieving equitable outcomes and addressing historical disparities.
Corrective equality requires measures to rectify past injustices and promote equitable conditions.

Grounds of Unfair Discrimination

Section 9(3) of the Constitution lists several grounds for which discrimination can be deemed unfair, including race, gender, and disability.

Purpose of Differentiation Measure

The differentiation measure assesses whether a specific act of differentiation is fair or unfair, weighing its implications and consequences.

Significance of Harksen v Lane Case

The Harksen v Lane case is significant in clarifying South African constitutional principles regarding equality and unfair discrimination.

Determining Violation of Equality

The first question in assessing a violation of the right to equality involves identifying whether discrimination exists.

Requirements for Unfair Discrimination

To be considered unfair, discrimination must not only exist but also fail to meet the criteria for justification or fairness.

Minority Protection

Minority protection is based on two aspects: acknowledging the specific rights of minorities and ensuring their interests are represented.

Special Arrangements for Minority Protection

Special arrangements suggest targeted measures to safeguard minority rights, reflecting their unique challenges.

Dominant Views Post-World War II

After World War II, the dominant view leaned towards the necessity of safeguarding minority rights to prevent oppression.

Definition of a Minority Group

A minority group is defined by its numerical inferiority in relation to the dominant population, often facing distinct societal challenges.

Risks Faced by Minority Communities

Minority communities risk marginalization and loss of cultural identity due to their smaller numbers and lack of political power.

International Treaties for Minority Protection

The first express protections for minorities appeared in international treaties such as the UN Convention on the Elimination of All Forms of Racial Discrimination.

Requirements for True Equality

Ensuring true equality between majorities and minorities requires legal frameworks that promote inclusion and equitable access to resources.

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Quiz: Landmark South African Constitutional Court Cases on LGBTQ+ Rights Test your knowledge of important South African Constitutional Court cases that have shaped LGBTQ+ rights in the country. Explore key rulings and legal arguments from cases such as Harksen v Lane, Minister of Home Affairs v Fourie, National Coalition for Gay and Lesbian Equality and Another v Minister of Justice and Others, and more. Challenge yourself with questions based on specific paragraphs and gain a deeper understanding of the legal landscape surrounding LGBTQ+ rights in South