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The High Court found that these provisions manifested a twofold differentiation. First, differentiation on the grounds of “sex (gender)” because the provisions criminalised only certain conduct by men; no acts of an equivalent nature performed by women or by men and women together are criminalised under the Act. Second, on grounds of sexual orientation, because “the target of the section is plainly men with homosexual tendencies albeit that the wording is wide enough to embrace heterosexuals.” Neither basis for differentiation, the judgment proceeds, bears a rational connection to any legitimate governmental purpose. As both are listed in section 9(3) unfairness is presumed, and without considering whether fairness had been established, Heher J immediately proceeded to consider whether the violation of section 9 could be justified under section 36. He found that it could not. Having found the offence of sodomy to be constitutionally invalid Heher J concluded, as an inescapable consequence (and correctly

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