completely different. What established the visible or invisible norm then is no longer the point of reference for legal evaluation today. Ignoring the context, once convenient, is no longer permissible in our current constitutional democracy which deals with the real lives as lived by real people today. Our equality jurisprudence accordingly emphasises the importance of the impact that an apparently neutral distinction could have on the dignity and sense of self-worth of the persons affected.
[152]It is precisely sensitivity to context and impact that suggest that equal treatment does not invariably require identical treatment. Thus corrective measures to overcome past and continuing discrimination may justify and may even require differential treatment.[1] Similarly, measures based on objective biological or other constitutionally neutral factors, such as those concerning toilet facilities or gender-specific search procedures, might be both acceptable and desirable.[2] The crucial determinant will always be whether human dignity is enhanced or diminished and the achievement of equality is promoted or undermined by the measure concerned. Differential treatment in itself does not necessarily violate the dignity of those
- ↑ See Minister of Finance and Another v Van Heerden 2004 (6) SA 121 (CC); 2004 (11) BCLR 1125 (CC).
- ↑ See Weatherall v Canada (Attorney General) [1993] 2 S.C.R 872 at 874 where it was held that it does not follow from the fact that female prison inmates are not subject to cross-gender frisk searches and surveillance that these practices result in discriminatory treatment of male inmates. Equality does not necessarily connote identical treatment; in fact, different treatment may be called for in certain cases to promote equality. Equality, in that context, does not demand that practices which are forbidden where male officers guard female inmates must also be banned where female officers guard male inmates. Given the historical, biological and sociological differences between men and women, it was clear that the effect of cross-gender searching is different and more threatening for women than for men. The important government objectives of inmate rehabilitation and security of the institution are promoted as a result of the humanising effect of having women in these positions. Moreover, Parliament's ideal of achieving employment equity was given a material application by way of this initiative. The proportionality of the means used to the importance of these ends would thus justify any breach of equality.
