Gender Equality: South Africa's Constitutional Right

South Africa has a history of gender inequality, with women legally considered second-class citizens for many years. The country's Constitution now recognises gender equality as a fundamental right, and the Commission for Gender Equality (CGE) was established to promote, protect, and achieve gender equality through research, public education, policy development, and legislative initiatives. Section 9 of the Constitution provides for the right to equality, explicitly stating that everyone is equal before the law and prohibiting unfair discrimination based on gender, among other grounds. This section has been pivotal in challenging discriminatory laws and practices, such as those related to child care and corporal punishment, and has paved the way for new legislation that upholds the principles of gender equality.

Explore related products

Law and the Quest for Gender Equality (Global Thinkers Series)

$38.98 $49.95

Gender Equality and Prayer in Jewish Law

$24.95

On Account of Sex: Ruth Bader Ginsburg and the Making of Gender Equality Law (Landmark Law Cases and American Society)

$29.99 $29.99

Gender Equality and Prayer in Jewish Law

$25

Gender, Constitutions, and Equality: A Global Comparison (Gender and Comparative Politics)

$52.99 $52.99

Law, Vulnerability, and the Responsive State (Gender in Law, Culture, and Society)

$41.59 $51.99

The South African Constitution recognises women as equal citizens

Section 9 of the Constitution provides for the right to equality. Specifically, Section 9(1) states that "Everyone is equal before the law and has the right to equal protection and benefit of the law." This means that everyone must be treated fairly and equally by the law, regardless of their gender, and that the law must protect everyone equally.

Furthermore, Section 9(3) states that "The State may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth." This section specifically prohibits the state from discriminating against anyone based on their gender, among other things. It is important to note that this section also applies to indirect discrimination, which could include policies or practices that appear neutral but have a disproportionate impact on a particular group, such as women.

The Constitution also establishes the Commission for Gender Equality (CGE), an independent institution that promotes respect for gender equality and works to advance, protect, and promote gender equality in South Africa. The CGE is responsible for investigating gender-related issues, conducting research, public education, policy development, legislative initiatives, effective monitoring, and litigation to ensure that women's rights are respected and protected.

The Constitutional Court, the highest court in South Africa, has also played a significant role in affirming women's rights. The Court has handed down several judgments that directly or indirectly uphold gender equality. For example, in the case of Minister of Health and Others v TAC and Others, the Court ruled against the government's policy on the prevention of mother-to-child transmission of HIV, which limited the use of Nevirapine to a small number of pilot sites. The Court found that this policy violated the right to equality by discriminating against certain mothers and children.

Equality before the law and equal protection are enshrined in the Constitution

The South African Constitution is clear in its assertion of equality before the law. Section 9(1) of the Constitution states that "Everyone is equal before the law and has the right to equal protection and benefit of the law." This clause is a cornerstone of the Constitution and is supported by other sections that outline specific protections for different groups, such as children and women.

For example, the Constitutional Court has interpreted and applied these rights in cases involving children's rights, such as the right to be free from corporal punishment and the right to have their best interests considered in matters concerning them. In one case, the Court held that a law permitting the "moderate correction" of juveniles by whipping was unconstitutional as it violated the dignity of both the juvenile and the person administering the punishment.

The Constitution also recognises the historical discrimination faced by women in South Africa and the need for specific protections to address this inequality. For instance, the Constitutional Court has ruled in favour of unmarried fathers' rights to access, custody, or guardianship of their children, recognising that the best interests of the child are paramount. This ruling addressed a gap in legislation that previously only recognised marriages performed according to Christian rites.

Furthermore, the Constitution establishes independent institutions to promote and protect gender equality, such as the Commission for Gender Equality (CGE). The CGE is mandated to investigate gender-related issues, conduct research, promote public education, and undertake legislative initiatives to advance gender equality in South Africa.

The Constitution's commitment to equality before the law and equal protection is also reflected in its recognition of the state's duty to progressively realise these rights. While the state is not obliged to immediately realise these rights, it must take reasonable legislative and other measures to give effect to them. This includes enacting national legislation to prevent and prohibit unfair discrimination on various grounds, including gender.

The Constitution prohibits unfair discrimination based on gender

The South African Constitution is clear in its prohibition of unfair discrimination based on gender. This is outlined in Section 9 of the Constitution, which provides for the right to equality before the law and equal protection for all. Specifically, Section 9(3) states that the state may not unfairly discriminate, either directly or indirectly, against anyone on the basis of gender, among other grounds. This is further reinforced by Section 9(4), which extends this prohibition of discrimination to individuals, and Section 9(5), which defines discrimination on the listed grounds as unfair unless proven otherwise.

The Constitution's recognition of the right to equality is a powerful tool in challenging gender discrimination. This was demonstrated in the case of Minister for Welfare and Population Development v Fitzpatrick, where the Cape High Court ruled that a section of the Child Care Act of 1983, which prohibited non-South Africans from adopting South African children, was unconstitutional. The Court held that this violated the right to equality and discriminated against fathers in marriages not recognised by law, such as Muslim and Hindu marriages.

The Constitutional Court has also played a significant role in affirming children's rights and, by extension, addressing gender discrimination. In one case, the Court ruled that juvenile whipping was unconstitutional as it violated the dignity of both the juvenile and the person administering the punishment. This decision contributed to the elimination of corporal punishment in South Africa.

Furthermore, the establishment of the Commission for Gender Equality (CGE) is a testament to South Africa's commitment to promoting gender equality. The CGE, established under Section 181 of the Constitution, is mandated to promote respect for gender equality and to advance, protect, and promote gender equality through various means, including research, public education, and legislative initiatives.

One example of legislation passed in response to a Constitutional Court ruling is the Natural Fathers of Children Born out of Wedlock Act of 1997. This Act gives unmarried natural fathers, including those in marriages not recognised by the state, the right to seek access, custody, or guardianship of their children through the courts. This legislation addresses historical gender discrimination against fathers in certain religious marriages, recognising the importance of the best interests of the child.

Explore related products

Gender and Equality Law (The Library of Essays on Equality and Anti-Discrimination Law)

$425 $475

International Women’s Rights Law and Gender Equality: Making the Law Work for Women (Routledge Studies in Gender and Global Politics)

$52.99 $190

What Works: Gender Equality by Design

$15 $30

Sex Equality, 3d (University Casebook Series)

$296

Law, Gender, and Injustice: A Legal History of U.S. Women (Feminist Crosscurrents, 1)

$30 $30

Journeys Toward Gender Equality in Islam

$21 $30

Gender discrimination encompasses sexual harassment, restricted education, employment, healthcare

South Africa has made significant strides in addressing gender discrimination, as evidenced by its constitution, which serves as a framework for promoting gender equality. The country's commitment to tackling gender imbalances is reflected in various sectors, including education, employment, and healthcare.

Sexual Harassment

Sexual harassment is a form of gender-based harm and discrimination that persists in South Africa, despite the existence of legislative frameworks aimed at curbing it. The country's ratification of the Violence and Harassment Convention in November 2021 acknowledges that sexual harassment encompasses a range of unacceptable behaviours, practices, and threats that result in physical, psychological, sexual, or economic harm. This includes gender-based violence and harassment, which disproportionately affects individuals based on their sex or gender. South Africa's legislative frameworks, such as the EEA (Employment Equity Act) and the Promotion of Equality and Prevention of Unfair Discrimination Act, are crucial in addressing sexual harassment in the workplace.

Restricted Education

South Africa's history of gender, class, and racial discrimination has resulted in varying degrees of oppression among women. While advancements have been made in terms of gender equity in higher education, gender inequalities persist. Studies have shown that female staff in academia remain excluded, sidelined, discriminated against, and victimised. The White Paper on the South African Department of Education (1997) aims to address past injustices intensified by race, gender, social class, disability, and other forms of discrimination. The Commission for Gender Equality (CGE), established in 1996, strives for gender equality and development. However, the CGE 2019 report acknowledges that more needs to be done to achieve these goals fully.

Employment

The South African Employment Equity Act (EEA) prohibits unfair discrimination in employment practices based on various grounds, including gender. The EEA specifically addresses gender discrimination, stating that it refers to any distinction, exclusion, or restriction made on the basis of sex, including pregnancy, marital status, and family responsibilities. While there is sparse evidence of unfair gender-based discrimination affecting grading and salary, some studies suggest that family responsibilities do not significantly impact employee outcomes along gender lines. However, other studies contradict this, linking gender discrimination in the workplace to matters related to family life and responsibilities.

Healthcare

South Africa has demonstrated a commitment to resolving gender imbalances in healthcare, particularly regarding cisgender women's challenges. However, trans women face significant obstacles in accessing public healthcare due to institutionalised gender binary norms. Trans individuals experience prejudiced treatment and discrimination across various healthcare settings, leading to social exclusion and psychological distress. Studies highlight the need for critical, intersectionality-informed health research to expose the systems and processes that marginalise trans patients and move towards gender equity in healthcare.

The Constitutional Court has affirmed children's rights and ruled against corporal punishment

The South African Constitution recognises gender equality as a fundamental human right. The country's history of gender discrimination, particularly against women, has been well-documented. The Bill of Rights, which grants women equal citizenship, was a significant step forward in the fight for gender equality.

The Constitutional Court has played a crucial role in affirming children's rights and ruling against corporal punishment. In one notable case, the Court declared that corporal punishment was unconstitutional, violating the right to dignity and the right not to be treated or punished in a cruel, inhuman, or degrading way. This ruling set a precedent for future cases involving children's rights and corporal punishment.

The case in question involved six juveniles who had been sentenced to "moderate correction" under the Criminal Procedure Act of 1977. The Constitutional Court's decision to declare corporal punishment unconstitutional had far-reaching implications. Whipping as a form of punishment was no longer legally permissible, and the courts could no longer impose it.

The Constitutional Court's ruling against corporal punishment is a significant step forward in recognising and protecting children's rights. It sends a strong message that corporal punishment is a violation of human dignity and that there are alternative, non-violent forms of discipline.

While the ruling specifically addressed juvenile whipping, it is part of a broader movement to abolish corporal punishment in all settings, including schools and homes. There is a growing consensus that corporal punishment is ineffective and has negative consequences for children's behaviour and socialisation, including an increased risk of mental health issues and future violence.

In addition to the Constitutional Court's ruling, organisations such as the American Academy of Pediatrics (AAP) and the American Psychological Association (APA) have advocated for the elimination of physical and humiliating punishment. These organisations have published statements and guidelines promoting positive and effective parenting strategies that do not involve physical force.

Frequently asked questions