[110]Against this background it is understandable that the applicants should urge this Court to base its invalidation of the anti-sodomy laws on the ground that they violated the equality provisions in the Bill of Rights. Less acceptable however, is the manner in which applicants treated the right to privacy, presenting it in their written argument[1] as a poor second prize to be offered and received only in the event of the Court declining to invalidate the laws because of a breach of equality. Their argument may be summarised as follows: privacy analysis is inadequate because it suggests that homosexuality is shameful and therefore should only be protected if it is limited to the private bedroom; it tends to limit the promotion of gay rights to the decriminalisation of consensual adult sex, instead of contemplating a more comprehensive normative framework that addresses discrimination generally against gays; and it assumes a dual structure—public and private—that does not capture the complexity of lived life, in which public and private lives determine each other, with the mobile lines between them being constantly amenable to repressive definition.[2]
[111]These concerns are undoubtedly valid. Yet, I consider that they arise from a set of assumptions that are flawed as to how equality and privacy rights interrelate and about the manner in which privacy rights should truly be understood; in the first place, the approach
- ↑ In his oral presentation counsel for the applicants indicated that his concern was not with the privacy argument in itself, but the way in which the judgment on privacy might be couched. It is to this concern that I address myself.
- ↑ See Pantazis above n 1 and Cameron “Sexual Orientation and the Constitution: A Test Case for Human Rights” (1993) 110 SA Law Journal 450.
