Quote of the week

Although judicial proceedings will generally be bound by the requirements of natural justice to a greater degree than will hearings before administrative tribunals, judicial decision-makers, by virtue of their positions, have nonetheless been granted considerable deference by appellate courts inquiring into the apprehension of bias. This is because judges ‘are assumed to be [people] of conscience and intellectual discipline, capable of judging a particular controversy fairly on the basis of its own circumstances’: The presumption of impartiality carries considerable weight, for as Blackstone opined at p. 361 in Commentaries on the Laws of England III . . . ‘[t]he law will not suppose possibility of bias in a judge, who is already sworn to administer impartial justice, and whose authority greatly depends upon that presumption and idea’. Thus, reviewing courts have been hesitant to make a finding of bias or to perceive a reasonable apprehension of bias on the part of a judge, in the absence of convincing evidence to that effect.

L'Heureux-Dube and McLachlin JJ
Livesey v The New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288
14 July 2010

Christine, give them hell!

Multinational steel retailer, Bohler Uddeholm Africa, is probably going to regret the fact that it ever employed Chris(tine) Ehlers. Hopefully the company will also, at some point, begin to regret that its management is filled with people who act like bigots. Christine Ehlers, who was fired as a sales assistant after her employers discovered that she had begun a series of sex change procedures in 2008, is taking her case to the Labout Court.

Christine is a transgendered person because she was born into the body of a man but realized that she was really a woman and is now altering her body to bring her body in line with her own deeply held view of her sexual status. She claims in court papers that she was fired as a sales representative for the company “on the grounds of her sexual status”. In the papers, she quotes from the findings of a disciplinary inquiry which justified her firing as follows:

It was also determined in discussion with management that the position is distinctly for a male employee and the applicant (Ehlers) [has] already got distinct female features that create a difficult situation…. In the end, the employer has to protect its business and may demand a certain standard of acceptability from its representatives in relation to its customers. I find myself in a difficult situation in that the employee argues that she can still function in the exact same manner as she would have as a man. The employer argues, on the contrary, that it is an international concern that has to protect its image in the market in the metal industry, which is predominantly male-orientated.

Well, this argument is not constitutionally tenable. Section 9(3) of the South African Constitution prohibits unfair discrimination on the grounds of sex, gender and sexual orientation. In the case of National Coalition for Gay and Lesbian Equality v Minister of Justice the Constitutional Court stated that the concept of “sexual orientation” as used in section 9(3) of the 1996 Constitution “must be given a generous interpretation” and thus applies equally to the orientation of persons who are “transsexual” (another, less politically correct, term for transgendered). Christine was thus obviously discriminated against on the basis of her sexual orientation.

But she was also discriminated against on the basis of her sex and/or gender as the job she was doing – as a sales representative – was explicitly reserved by the company for men only. This was not done on the basis that only men could possible do the job (as would have been the case, say, if the job entailed playing for the Springbok Rugby team), but rather on the basis that its customers would not like it if women tried to sell them the company’s products. Her employment as a sales assistant had “compromised the image” of the company in the industry.

Boy what a bigoted industry that must be!

Of course women can also sell stuff – including heavy machinery and other products usually associated with the male world (my car was sold to me by a fantastic woman called Heather) – but the company felt that the customers would not want to buy heavy machinery from a woman, especially (so it seems) not from a woman who used to be a man.

South African Airways used a similar argument after a man who had been accepted for employment as a cabin attendant by SAA, challenged a decision by SAA not to employ him when they discovered that he was HIV positive. In a beautifully written judgment by our present Chief Justice, Sandile Ngcobo, the Constitutional Court rejected this argument by SAA, stating that:

Legitimate commercial requirements are, of course, an important consideration in determining whether to employ an individual. However, we must guard against allowing stereotyping and prejudice to creep in under the guise of commercial interests. The greater interests of society require the recognition of the inherent dignity of every human being, and the elimination of all forms of discrimination. Our Constitution protects the weak, the marginalised, the socially outcast, and the victims of prejudice and stereotyping. It is only when these groups are protected that we can be secure that our own rights are protected….

Prejudice can never justify unfair discrimination. This country has recently emerged from institutionalised prejudice. Our law reports are replete with cases in which prejudice was taken into consideration in denying the rights that we now take for granted. Our constitutional democracy has ushered in a new era – it is an era characterised by respect for human dignity for all human beings. In this era, prejudice and stereotyping have no place. Indeed, if as a nation we are to achieve the goal of equality that we have fashioned in our Constitution we must never tolerate prejudice, either directly or indirectly. SAA, as a state organ that has a constitutional duty to uphold the Constitution, may not avoid its constitutional duty by bowing to prejudice and stereotyping.

If Bohler Uddeholm Africa had been aware of these precedents, it would not have justified the firing of Christine on the basis that its customers wanted to deal with “real men” – which precluded them from employing women as salespersons (whether those women used to be men or not). Given that it has done so, it is almost certain to lose its case in the Labour Court.

Here, being a man was not really an inherent requirement of the job as any woman with the requisite skills could also sell the company’s products to customers. The fact that customers would prefer not to deal with a certain salesperson because that salesperson is a woman (or black, or gay or a Muslim, for that matter) was therefore always legally irrelevant and could not be used to justify the discrimination. As Justice Ngcobo said: prejudice – even the prejudice of one’s customers – cannot ever justify discrimination. “Finish and klaar,” as Jackie Selebi might or might not have said if confronted with this case.

Incidentally, South Africa has one of the most progressive pieces of legislation dealing with transgendered citizens. The Alteration of Sex Description and Sex Status Act of 2003 allows anyone whose “sexual characteristics” have been altered by surgical or other medical means (or anyone who is intersexed) to apply for a change of their sex status with the Department of Home Affairs.

The definition of sexual characteristics in the Act is extremely broad and one needs not have concluded the surgical process of altering one’s body completely from male to female or from female to male to qualify in terms of the Act to have one’s sex status hanged. As long as one has started the process of transferring from a man to a woman or from a woman to a man (and as long as the technical requirements prescribed in the Act are met), the Department of Home Affairs must issue you with a new ID book and passport recording your newly acquired sex.

This Act was necessary to protect the human dignity of transgendered and intersected individuals who previously had to endure terrible trauma when, for example, traveling to another country on a passport that still reflected your previous sexual status. By passing this law our Parliament did a great and progressive thing – not waiting for our Courts to force them to do the right thing.

Good for them. Now, Christine, give those men hell!

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