“… the current period of rapid change seems to ‘strike at the most basic assumptions’ underlying marriage and the family.
…
Itself a country where considerable political and socio-economic movement has been and is taking place, South Africa occupies a distinctive position in the context of developments in the legal relationship between family members and between the State and the family. Its heterogeneous society is ‘fissured by differences of language, religion, race, cultural habit, historical experience and self-definition’ and, consequently, reflects widely varying expectations about marriage, family life and the position of women in society.”[1] (Footnotes omitted.)
The impact of the exclusion of lesbians and gays by the provision in question was to reinforce harmful and hurtful stereotypes.[2] Underlying these stereotypes, the Court continued, lay misconceptions derived from the fact that the sexual orientation of lesbians and gays was such that they had an erotic and emotional affinity for persons of the same sex.[3] This resulted in classifying lesbians and gays as exclusively sexual beings, reduced to one-dimensional creatures “defined by their sex and sexuality.”[4]
[53]The judgment sums up what it calls the facts concerning gays and lesbians as follows:
- ↑ Home Affairs above n 44 at para 47.
- ↑ Id at para 49.
- ↑ Id
- ↑ The judgment cites Timothy E Lin “Social Norms and Judicial Decisionmaking: Examining the Role of
Narratives in Same-Sex Adoption Cases”:
“[T]here is the story of lesbians and gays that centres on their sexuality. Whether because of disgust, confusion, or ignorance about homosexuality, lesbian and gay sexuality dominates the discourse of not only same-sex adoption, but all lesbian and gay issues. The classification of lesbians and gays as ‘exclusively sexual beings’ stands in stark contrast to the perception of heterosexual parents as ‘people who, along with many other activities in their lives, occasionally engage in sex.’ Through this narrative, lesbians and gays are reduced to one-dimensional creatures, defined by their sex and sexuality.” (Footnote omitted.) Home Affairs above n 44 at para 49.
