best guide as to when, and with respect to what interests, society is likely to stigmatise individuals as members of an inferior caste or view them as not belonging to the community. Because prejudice spawns prejudice, and stereotypes produce limitations that confirm the stereotype on which they are based, a history of unequal treatment requires sensitivity to the prospect that its vestiges endure … as in many important legal distinctions, ‘a page of history is worth a volume of logic’ ”.[1] In the case of gays, history and experience teach us that the scarring comes not from poverty or powerlessness, but from invisibility. It is the tainting of desire, it is the attribution of perversity and shame to spontaneous bodily affection, it is the prohibition of the expression of love, it is the denial of full moral citizenship in society because you are what you are, that impinges on the dignity and self-worth of a group.
- ↑ City of Cleburn Text. v Cleburn Living Center (1985) 473 US 432 at 473, quoting Holmes J in New York Trust Co. et. al. v Eisner (1921) 256 U.S. 345 at 349. The stereotyping in itself need not result in discrimination. The stereotype of the level-headed, unemotional man as being the best person to hold positions of leadership, has served many men well enough. It is when stereotypes are coupled with disadvantage that they become constitutionally offensive. Such disadvantage may take material forms, but need not do so; the Bill of Rights recognises that we do not live by bread alone. Indeed, there is no evidence before us that gays are either wealthier or poorer than the rest of society. Nor are they as individuals necessarily less represented than straights in the corridors of political, economic, social, cultural, judicial or security force power. The disadvantage they suffer comes not from a consequence of prejudice, it comes from prejudice itself. The complexity of the problems relating to stereotyping is illustrated by the contrasting positions adopted in Hugo above n 24 by Kriegler J at paras 80–86 and O’Regan J at para 111.
