As seductive as certain perspectives of international law may appear to those who disagree with the outcome of the interpretative exercise conducted by this Court in the contempt judgment, sight must not be lost of the proper place of international law, especially in respect of an application for rescission. The approach that my Brother adopts may be apposite in the context of an appeal, where a court is enjoined to consider whether the court a quo erred in its interpretation of the law. Although it should be clear by now, I shall repeat it once more: this is not an appeal, for this Court’s orders are not appealable. I am deeply concerned that seeking to rely on articles of the ICCPR as a basis for rescission constitutes nothing more than sophistry.
The Department of Home Affairs forces every single South African to classify themselves as either a man or a woman – even if a person feels uncomfortable doing so and does not neatly conform to socially constructed categories of “male” or “female”.
At my University, I often have to fill in forms in which I have to tick a box to indicate whether I am “male” or “female” and down the passage, the toilets are clearly separated along sex/gender lines. Yet, the same people who object to the University requiring applicants to identify themselves in terms racial categories have never so much as uttered a word of protest against this forced classification of people according to sex and gender.
Focusing on what can appear to be arbitrary biological characteristics (sexual organs or chromosomes instead of skin colour) and making false assumptions about the ability of all humans to neatly slot themselves into the categories of “male” and “female”, few people challenge the practice of classifying people in terms of their sex or gender. Even fewer people argue that it is incompatible with liberal dogma to classify ourselves as “male” or female” or to pursue redress for women based on their sex or gender identification.
I have yet to see anyone arguing that we should avoid using the categories of sex or gender to address the effects of past and on-going sex and gender discrimination and that we should rather focus on other factors such as the class or the educational background of a particular woman when we decide whether to allow the specific woman the benefits of affirmative action. We accept that a woman must benefit from redress measures because she is a woman who has been disadvantages, among other reasons, because of the way sex or gender has been used and continues to be used to subjugate all women.
Almost all of us assume that women as a class have experienced systemic discrimination in the past and continue to experience the effects of on-going sexism and patriarchy. Most of us also assume that redress measures targeting women as a group are needed to attack the systemic and structural reasons for women’s disadvantage.
Of course, many of us now recognise that sex and gender are human inventions – ideological constructs, if you will – created to subjugate women. We understand that neither sex nor gender categories can perfectly capture the essence of any human being. We may be aware of the fact that intersexed people are forced to categorise themselves as either male or female when these categories have very little to do with how they experience the world. Yet we accept that sex and gender have real consequences and that these consequences cannot be undone without invoking the invented categories of sex and gender and relying on these categories to get to the root causes of the systemic disadvantage suffered by women in a sexist and patriarchal world.
We understand that if we had chosen to, we could have classified humans based on other irrelevant characteristics such as the texture of their hair, the size of their feet, their ability to procreate, the size of their ears or whether they were right-handed or left-handed. We could have subjugated all people with small ears or blue eyes, or all people who could not produce children, but we chose not to do so. Instead we have classified people according to other arbitrary characteristics: skin colour, sex, and sexual orientation and we have subjugated people based on the fact that they are not white, not male, not heterosexual.
The fact that these categories are invented does not mean that they are not experienced as real and have no real consequences for those who have been subjugated. You benefit and enjoy the privileges of belonging to the subjugating group because you are assumed to be superior due to the fact that you happen to have been classified as a man or as white or as heterosexual.
When sex and gender categories are relied on to subjugate women or to perpetuate harmful stereotypes about women few people argue that the problem is the very categorisation of people into sex and gender categories. Instead we distinguish between the use of sex and gender categories for benign or laudable purposes (to address the effects of past and on-going discrimination, say) and the use of these categories to subjugate women (by justifying discrimination against women, say) – even as we question the “truth” of these categories and deny that these categories can ever say anything essential and universal about those who are made to belong to one of them.
Most feminists do not shy away from being identified as women. Feminists might challenge essentialist notions about sex and gender and may point out that these categories can never tell the full truth about a single human being, but for strategic reasons will rely on sex and gender categories to resist the subjugation of “women”. Thus many feminists use the fact that they are classified as women to resist the very subjugation that the classification made possible in the first place, reminding us that classifications can be used for evil purposes, but can also be relied upon to serve as a rallying point for resistance to challenge subjugation.
Similarly, in our heteronormative world, gay men and lesbians are systematically discriminated against, yet many gay men and lesbians embrace the classification of themselves as gay or lesbian (the very classification which have been used to subjugate them) in order to resist that subjugation. The fact which the alleged “liberals” do not want to admit is that our identities as black people, as women, as gay men and lesbians empower us to resist oppression.
We take part in gay pride marches to challenge the ideology of heterosexual superiority; we demand equal rights for gay men and lesbians based on our constructed gay and lesbian identities; we challenge heterosexual privilege by pointing out how social and cultural assumptions about the superiority and normality of so called heterosexuality continues to subjugate and marginalise us.
Thankfully, I have not heard of any outrage by self-confessed “liberals”, claiming that gay pride marches are hetero-phobic or that the classification of people as either heterosexual or homosexual are inherently dangerous and in conflict with liberal principles. It would be catastrophic for the advancement of gay and lesbian equality if “liberals” suddenly started arguing (as some do regarding race) that it is illegitimate to classify ourselves as gay or lesbian and to use these classifications to resist our oppression. Suddenly our oppression would disappear and heterosexuals would have managed to make it difficult if not impossible for us to challenge our own oppression.
It is against this background that the argument by some “liberals” that it is wrong, on principled liberal grounds, ever to invoke racial categories for the purposes of attacking the effects of past and on-going racial oppression, rings hollow and false.
When we insist that redress measures should largely (but not exclusively) rely on racial categories because that is the only manner in which to address the racial subjugation black South Africans, we are told that it is inherently evil to classify people in racial terms – regardless of whether the purpose of the classification is to address the evil effects of racism or to perpetuate racial subjugation. We are told that redress measures should not address the actual causes of subjugation – the manner in which the ideology of white superiority have been used and continues to be used to subjugate black people – but should rather focus on inexact and sometimes irrelevant proxies such as class differences or differences in educational background between people regardless of race.
Why is it that so many people who are prepared to recognise the systemic and structural nature of sex and gender oppression (or even the oppression relating to sexual orientation) and would never dream of opposing the classification of people along sex, gender or sexual orientation lines and using these classifications in order to address the systemic and structural oppression of women or gay men and lesbians, suddenly get very angry when racial categories are invoked as a way of resisting racial oppression?
Could it be that the argument is no more than a self-serving attempt to entrench the status quo of white privilege? If we are not allowed to invoke the racial categories in terms of which the hierarchy of white superiority is established and maintained, how can we ever begin to address the structural and systemic reasons for the social, cultural and economic disadvantage of black South Africans? Is this sudden but selective abhorrence by some liberals to the categorisation of people according to race not merely another attempt to render invisible the mechanisms through which racial oppression is maintained and perpetuated?
Should we not rather be more principled and argue, first that all identity categories are clearly constructed and often for the purpose of subjugating the one group to the benefit of another but, second, that we must surely use such categories strategically to resist subjugation? Should we not move beyond sterile and false arguments that it is always wrong to invoke race, sex, gender or sexual orientation categories and rather point out that what renders the use of such categories problematic is the evil purpose for which they are being used? If categories such as race are used to subjugate those already marginalised and oppressed, it must be resisted. But if such categories are used to challenge the very subjugation which the categories were created to maintain, we cannot (on sound principled grounds) oppose this.BACK TO TOP