MOKGORO J
sufficient to conclude that the discrimination was fair. I can find none. I therefore
agree that the impugned provisions of the Act limit section 9 of the Constitution.
[36] Finally, the question is whether the violation can be justified under section 36
of the Constitution. Here, the applicant and respondents were in one mind in their
submissions that there was no justification. I am inclined to agree. The impugned
sections are specific in their effect: they do not purport to protect children between the
ages of 16 and 18 against all sexual acts, but only against homosexual sexual acts.
The inevitable inference is that there is something odd, deviant and even perverse
about homosexual acts and/or homosexual people. For young people who are only
just beginning to explore their sexuality and are perhaps considering “coming out” to
their parents and their community, the negative effect of the discrimination in this case
might be particularly harmful.
[37]
The differential age of consent perpetuates a damaging stereotype of sexual
conduct between same-sex partners as somehow disgraceful or as of less value than
sexual conduct between opposite-sex partners.
The effect is demeaning and in
conflict with our Constitution and its values. It is contrary to the right to equality
protected in section 9 of the Constitution and inimical to the values of equality, human
dignity and freedom which are basic to our constitutional democracy. In National
Coalition, Sachs J held:
“The effect is that all homosexual desire is tainted, and the whole gay and lesbian
community is marked with deviance and perversity. When everything associated
with homosexuality is treated as bent, queer, repugnant or comical, the equality
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