Quote of the week

Mr Zuma is no ordinary litigant. He is the former President of the Republic, who remains a public figure and continues to wield significant political influence, while acting as an example to his supporters… He has a great deal of power to incite others to similarly defy court orders because his actions and any consequences, or lack thereof, are being closely observed by the public. If his conduct is met with impunity, he will do significant damage to the rule of law. As this Court noted in Mamabolo, “[n]o one familiar with our history can be unaware of the very special need to preserve the integrity of the rule of law”. Mr Zuma is subject to the laws of the Republic. No person enjoys exclusion or exemption from the sovereignty of our laws… It would be antithetical to the value of accountability if those who once held high office are not bound by the law.

Khampepe j
Secretary of the Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the Public Sector including Organs of State v Zuma and Others (CCT 52/21) [2021] ZACC 18
27 January 2016

“Virginity testing” bursaries: discriminatory and unlawful

The 16 young women who received “Maidens Bursary Awards” from the UThukela District Municipality in order to further their studies after matric, could almost certainly not legally be required to comply with the conditions attached to the awarding of the bursary. This is because these conditions clearly infringe on the constitutional rights of women and are almost certainly null and void. The Municipality is almost certainly also acting in breach of the Promotion of Equality and Prevention of Unfair Discrimination Act.

One of the many ways in which frightened patriarchal men attempt to assert control and dominance over women is through the policing of women’s bodies, specifically their sexuality. In a society steeped in patriarchy there will be direct and indirect attempts to control women’s bodies and sexuality.

As Justice Kate O’Reagan and Albie Sachs noted in S v Jordan, the criminalization of certain kinds of sexual activity are often based on a double standard. The woman whose sexual activities are criminalised is often made:

visible and denounced, her existence tainted by her activity. [The man] is faceless, a mere ingredient in her offence rather than a criminal in his own right, who returns to respectability after the encounter. In terms of the sexual double standards prevalent in our society, he has often been regarded either as having given in to temptation, or as having done the sort of thing that men do…. The difference in social stigma tracks a pattern of applying different standards to the sexuality of men and women.

However, the policing of women’s sexuality – applying this sexist double standard – does not only occur through the application of the criminal law. A myriad of techniques are used to enforce and promote the idea that sexual activity by (especially unmarried) women is dangerous, “impure”, or immoral, while turning a blind eye or quietly celebrating the sexual activity of men.

(The assumption that every woman’s life builds up to an inevitable wedding to a man is, of course, itself based on deeply problematic patriarchal and heteronormative assumptions about the role that women are supposed to play in our society.)

The decision of the UThukela District Municipality to award 16 bursaries to high-achieving young women on the condition that they have not been sexually active and will remain sexually inactive is yet another technique through which men are attempting to assert their control and domination over women.

One of the conditions imposed by the bursary is that women must undergo so called “virginity testing” every holiday to ensure they have not become sexually active. If they “fail” this test, their bursary will be taken away. In other words the bursaries are awarded to them on the condition that they remain virgins.

Although the UThukela District Municipality awards bursaries to more than 100 pupils who have excelled in their final school exam, none of the bursaries awarded to male candidates have been made subject to the condition that they remain virgins.

By imposing this condition on some of the young women awarded bursaries (but on none of the young men awarded bursaries), the Municipality is discriminating against women. The bursary scheme creates two categories of beneficiaries: (i) a group of women on whom additional burdens or obligations are imposed; and (ii) another group on whom no such additional burdens or obligations are imposed.

In terms of section 1 of the Promotion of Equality and Prevention of Unfair Discrimination Act (PEPUDA), this distinction constitutes discrimination. This is because discrimination is defined as:

any act or omission, including a policy, law, rule, practice, condition or situation which directly or indirectly (a) imposes burdens, obligations or disadvantage on; or (b) withholds benefits, opportunities or advantages from, any person on one or more of the prohibited grounds.

The prohibited grounds include sex and gender (along with race, sexual orientation, pregnancy, marital status, and the like). Because the definition includes both direct and indirect discrimination, the focus is on the impact of the problematic policy, rule or practice. In this case, the 16 women are subjected to conditions to which men who were awarded bursaries were not subjected to.

But the negative impact on the 16 women goes far beyond having to comply with a condition that none of the male recipients have to comply with.

First, the requirement that the 16 women have to undergo regular “virginity testing” constitutes a severe infringement on their right to privacy (protected by section 14 of the Constitution). The Constitutional Court has noted that community rights, beliefs and practices must yield to the privacy interests of the individual when that privacy interest relates to the truly personal aspects of an individual’s life, such as decisions about their intimate relationships and choices about their bodies.

As Justice Ackermann held in the National Coalition for Gay and Lesbian Equality and Another v The Minister of Justice and Others:

Privacy recognises that we all have a right to a sphere of private intimacy and autonomy which allows us to establish and nurture human relationships without interference from the outside community. The way in which we give expression to our sexuality is at the core of this area of private intimacy. If, in expressing our sexuality, we act consensually and without harming one another, invasion of that precinct will be a breach of our privacy.

“Virginity testing” constitutes a flagrant and egregious infringement on this right to privacy as it purports to give others the right to invade an area of private intimacy and to police the most private choices about intimate relationships. What is supposed to be an intensely private matter – decisions about whether to engage in sexual activity – is rendered a semi-public matter open to scrutiny by others.

Second, the conditions attached to the bursary also allows for a radical infringement of the right to bodily integrity (protected by section 12(2) of the Constitution). This section states that everyone has the right to bodily and psychological integrity, which includes the right to make decisions concerning reproduction; to security in and control over their body; and not to be subjected to medical or scientific experiments without their informed consent.

The right thus guarantees for everyone a degree of autonomy to make decisions about how to live their lives, the right of adults to be left alone to decide for themselves whether to engage in consensual sexual activity and with whom. It goes without saying that a where an institution requires a women to undergo regular “testing” to determine whether she has engaged in sexual activity, it demands the right to invade her body with a view to limiting the agency of the women concerned.

There can therefore be no question that the “Maidens Bursary Awards” discriminate against women.

But in terms of PEPUDA this is not the end of the matter. Section 6 of the PEPUDA prohibits only unfair discrimination by either the State or by individuals or private institutions. This is so because the Act gives effects to the constitutional prohibition against discrimination, and because the Constitution rejects a formal conception of equality (with its focus on equal treatment) in favour of substantive equality (with its focus on fairness and equality of outcomes).

Section 14 of PEPUDA lists several factors that can be taken into account to determine whether the discrimination is fair (and hence lawful) or unfair (and hence unlawful). For example, section 14(2)(c) allows a court to ask whether the discrimination reasonably and justifiably differentiates between persons according to objectively determinable criteria, intrinsic to the activity concerned. As virginity is not intrinsic to the task of studying, this factor is not in issue here.

Most of the other factors listed in section 14 weighs in favour of a finding that the discrimination by the Municipality is unfair and hence unlawful. The discrimination impairs or is likely to impair the human dignity not only of the women receiving the bursary but of women in general.

As noted above, the discrimination may likely have a severe impact on the women involved as it also infringes on their right to privacy and bodily integrity. Moreover, as women already suffer “from patterns of disadvantage” and as discrimination against women (also via the policing of their sexuality) is systemic in nature, it would be very difficult to convince a court that any discrimination against them is fair and lawful.

In terms of section 14 the only possible argument that the Municipality could advance to justify the discrimination, is to show that there is a legitimate purpose for the discrimination that outweighs the interest of women to have their human dignity respected and protected.

But here the very purpose of the discrimination is to control women’s sexuality in order to control and dominate them. The purpose of the discrimination is therefore to harm women.

It would not assist the Municipality to argue that the purpose of the discrimination is to prevent students from falling pregnant. This is so, first, because the awarding of the bursary is not made conditional on the women not falling pregnant – it is made conditional on the women remaining virgins. If pregnancy was the issue the condition is overbroad and too invasive.

In any case, PEPUDA prohibits discrimination on the basis of pregnancy. A rule that prohibits women from benefiting from a bursary after falling pregnant would in effect punish one of the parents (the woman) while turning a blind eye to the actions of the other parent (the man) and would perpetuate the sexist double standard which forms the basis of so many of the rules used to entrench patriarchal privilege.

In any case, it is only a sexist who might assume that a pregnant woman cannot get an abortion or is suddenly rendered incapable of studying just because she is pregnant. A bursary that punished women for falling pregnant would therefore also constitute unfair discrimination and be invalid.

In an ideal world the Commission for Gender Equality would take the appropriate action to ensure that the conditions imposed on the awarding of these bursaries are never enforced and that the Municipality apologises for its sexism.

2015 Constitutionally Speaking | website created by Idea in a Forest