Chapter 2, Section 9 of the Bill of Rights is clear. “Everyone is equal before the law and has the right to equal protection and benefit of the law.” This is an echo of the 14th Amendment to the U.S. Constitution ratified in 1868. But the South African constitution goes a step farther. “Everyone is equal before the law” is defined in subsection 3.
The state may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth.
The antecedents of this historic action were chronicled by Phumi Mtetwa, co-founder of the South African National Coalition for Gay and Lesbian Equality (NCGLE), and by Albie Sachs, who was appointed to the Constitutional Court of South Africa by Mandela in 1994 and served until 2009. In short, a policy of non-discrimination based on sexual orientation was adopted during an African National Congress conference in 1990. “[S]o when it came to the drafting of the new constitution,” Sachs said in an interview last year with the magazine Global, “the ANC recommended that the grounds of unfair discrimination – which included race, colour, creed, sex and disability – also included sexual orientation.”
The new constitution, adopted in May 1996, led to the end of the ban on gay men and lesbians serving openly in the South African military. And that historic document laid the groundwork for a historic 2005 court ruling written by Sachs that legalized same-sex marriage in the Rainbow Nation.
This is why leaders of American lesbian, gay, bisexual and transgender rights groups were quick to mourn Mandela’s loss. As Kevin Cathcart of Lambda Legal told the indefatigable Chris Geidner of BuzzFeed, “Every one of us who continues the fight for equality and civil rights in our own communities labors in the shadows of this man.”
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