Page:Fourie v Minister of Home Affairs (SCA).djvu/5

Rh unique: at the time no other country's founding document outlawed unfair discrimination on the express ground of sexual orientation. Its inclusion in the list of conditions specially protected against unfair discrimination was both novel and bold. This is important to emphasise, not because our decision requires boldness, but because the reasons for including sexual orientation in the Constitution illuminate our path.

Through more than 300 years, the primary criterion for civic and social subordination in South Africa was race. On the basis of their skin colour, black women and men were subjected to a host of systematic indignities and exclusions. These included denial of voting rights and citizenship. What was unique about apartheid was not that it involved racial humiliation and disadvantage—for recent European history has afforded more obliterating realisations of racism—but the fact that its iniquities were enshrined in law. More than anywhere else, apartheid enacted racism through minute elaboration in systematised legal regulation. As a consequence, the dogma