An ‘important purpose of section 34 [of the Constitution] is to guarantee the protection of the judicial process to persons who have disputes that can be resolved by law’ and that the right of access to court is ‘foundational to the stability of an orderly society. It ensures the peaceful, regulated and institutionalised mechanisms to resolve disputes, without resorting to self-help. The right of access to court is a bulwark against vigilantism, and the chaos and anarchy which it causes. Construed in this context of the rule of law and the principle against self-help in particular, access to court is indeed of cardinal importance’.The right guaranteed s34 would be rendered meaningless if court orders could be ignored with impunity:the underlying purposes of the right — and particularly that of avoidance of self-help — would be undermined if litigants could decide which orders they wished to obey and which they wished to ignore.
A few years ago an outfit called “The Gay and Lesbian Alliance” (GLA) lodged a complaint against two guest houses in the Cape Town City Bowl and Sea Point areas with the Human Rights Commission, arguing that they were discriminating against women and against heterosexuals because they were only allowing gay men to stay at their establishments.
The GLA was, of course, not a real organisation, but the front for a slightly unhinged man called Juan Duval Uys, who had bamboozled a gullible media into publishing many of his outlandish, bizarre and mostly untrue claims. (Uys proved just how lazy and untrustworthy the media could be: because he had a fax machine and made provocative claims which made for good copy, some newspapers printed these claims as fact without ever verifying whether the claims were true or not.)
In any case, the Human Rights Commission referred the matter to the Commission for Gender Equality (CGE) – not an organisation known for its efficiency and for the diligence and hard work of its commissioners – who, for once, miraculously did its job and investigated the issue before publishing a report on the matter. (This must have been one of the few times over the past 15 years that the CGE was in the news for anything other than allegations of corruption, infighting and mismanagement.)
As it turned out, the CGE rejected the complaint and found that the guest houses were “serving a legitimate interest in… that they seek to create a comfortable environment for gay men where they can express themselves freely. … It is the commission’s view that accommodation of this nature is necessary in our democratic society to protect or advance legitimate interests of the aforementioned groups,” it said.
Rather surprisingly – given the complete dysfunctionality of the CGE – this finding was perfectly correct and in line with the jurisprudence of the Constitutional Court. Because section 9(3) of the Constitution only prohibits unfair discrimination, it is perfectly acceptable to treat people differently based on their race, sex, gender or sexual orientation if the group who complained about discrimination is not one who has historically suffered from discrimination, if the purpose of the discrimination was for a worthy cause and if the effects of the discrimination was not serious.
One must balance the various interests and must ask whether the different treament was fair, given the important purpose of the different treatment and given the effect of the different treatment on the group who previously benefited from discrimination. If the effect of the present discrimination is so severe that it may affront the inherent human dignity of the affected group, the discrimination will not be fair.
Because the complaint related to heterosexuals who argued they were excluded by the guest house, and because the purpose of the exclusion was to provide a safe space where gay men would not feel unwelcome or intimidated and would not face ridicule or harassment by heterosexual patrons, the discrimination was found to be fair. Besides there are thousands of guest houses in Cape Town open to heterosexuals so the effect on them of not being allowed at these two establishments was really miniscule.
For the same reasons, I have no sympathy with rather selfrighteous (and self-serving) ex-alumni of the University of Cape Town (UCT) who are writing bitter letters to the local newspaper about the fact that the UCT administration has endorsed the formation of a UCT Black Alumni Association. According to these latter day converts to equality and non-discrimination, such an Association is racist and discriminatory because it fails to treat all human beings as equals regardless of race.
One should, so the argument goes, embrace the notion that race is absolutely irrelevant and superfluous if one ever wants to achieve a society and an institution that truly moves beyond race and treats individuals as humans instead of as people with racial identities that are of any importance to anyone.
This is of course a rather laughable argument as it is premised on the fiction that race is irrelevant in our society. The sad fact is that race – and sexual orientation – are not superfluous and hence not irrelevant exactly because racism – and homophobia – are still all pervasive in our society.
If one belongs to the race (or sexual orientation) not shared by the dominant group in an institution or in society one experience the exclusionary effects of one’s race or sexual orientation (whether one believes that race or sexual orientation are constructs or not) rather profoundly. If one belongs to the dominant race group or sexual orientation group, chances are that one will be oblivious to the exclusionary effect that race or sexual orientation has on those who are “othered”. Because one is always on the side of the “winners” who are not discriminated against one cannot see the discrimination that an institution visits on those who are not like the dominant group.
By insisting that race is irrelevant and superfluous, one is insisting on endorsing and perpetuating the fiction that the characteristics, cultural beliefs and (often unexamined and silent) norms of the dominant group are universal and neutral. One is not aware of how the institutional culture expects conformity to this norm (which is not seen as a norm at all, but rather as something natural and neutral) as the price for equal treatment.
Because the dominant norm according to which decisions about inclusion and exclusion are made is so part of the world view of the dominant white group, they cannot see the exclusionary effect that it might have on those who happen not to share their world view, their race, their sexual orientation (because they do not see that there is a dominant norm or world view at all).
Those who dominate an institution therefore often claim that race (or sexual orientation) is irrelevant to them. They claim to be completely blind to these categories but this blindness is a fiction that can only be sustained if one remains blind to one’s own situatedness in the world. Those who maintain this fiction of being able to be blind to race or sexual orientation do so because they do not realise that it is only irrelevant for THEM because their racial or sexual orientation assumptions dominate in the institution and thus dictate how one ought to behave and what one ought to do to fit in and to be treated equally with everyone else.
If one happens to be a student at UCT (as at many other institutions) and one is not white or heterosexual, one finds oneself in a situation where an institutional culture – without deliberately wanting to – excludes and marginalises one because one happens not to be part of the dominant group. It then denies that experience of marginalisation and deligitimises one’s experience of marginlaisation on the basis that one is obsessed with race (or sexual orientation) – unlike the dominant group who is supposedly blind to these things. It is called blaming the victim.
When the institutional culture in which one finds oneself is premised on the fiction that every student is a white heterosexual English person and then denies this assumption by saying that there is no institutional culture or that the institutional culture has absolutely nothing to do with race or sexual orientation, that it merely reflects a universal standard that all normal people will find unproblematic, then the effects of the discrimination can be particularly egregious.
Hence one is faced either with conforming to a set of norms that are experienced as normal – as “just how the world is” – in order to be treated equally, or one has to accept that one will be marginalised and excluded.
In such a situation it is perfectly acceptable – according to the jurisprudence of the Constitutional Court – to form a racially exclusive Black Alumni Association (especially, as is the case here, where that association is not racially exclusive but open to all) to address the effects of past exclusion and marginalisation. As those who are supposedly the victims of this discrimination are white and part of the dominant group, a court will be hard pressed to find that it constitutes unfair discrimination unless it can be shown that the purpose of such an organisation is to perpetuate patterns of past discrimination (something which would be impossible to show in this case as the purpose of the organisation is to overcome the effects of past patterns of discrimination).
It is funny that those who insist that an institution should never allow any race based corrective measures and should never refer to race are almost exclusively the beneficiaries of past race based discrimination. They are also almost exclusively members of the dominant racial group (or at least not members of the most discriminated against group) who can afford to claim that race is irrelevant and does not matter exactly because their race – and all the assumptions that go with it – serves as a universal and neutral placeholder.
In South Africa race will remain important for a very long time to come. Claiming that it is irrelevant is to claim that the past 350 years never happened and that the effects of the past 350 years have been wiped out by the stroke of a pen. This is obviously absurd and dishonest. It is also self-serving: if the dominant culture at an institution happens to promote and preserve the racial assumptions and culture of one’s own group, one would want to claim that race does not matter because then one could ensure that the status quo is never disturbed or troubled.
Of course we all would love to move to an utopian society in which a person’s race really does not matter to anyone. But we cannot do that by pretending race does not matter now, when it so clearly does. Racism is all around us and pretending that race does not matter now and that racism does not exist is, in my view at least, merely a less toxic form of racism. All we are doing when we do that is to try and preserve the status quo which benefits ourselves and which we want to normalise and universalise – something that is inherently unfair and also unconstitutional.BACK TO TOP