Browsing by Subject "equality"

Now showing 1 - 3 of 3
  • Thumbnail Image
    Item
    Open Access
    A Third Gender in South Africa: Does the legal non-recognition of a third gender violate non-binary transgender person's Constitutional rights to dignity and equality?
    (2020) Sloth-Nielsen, Rachel; de Vos, Pierre
    This dissertation will attempt to answer question whether, in terms of the right to dignity in s10 and the prohibition of unfair discrimination in s9 of the South African Constitution, the State must recognise in law a third gender for transgender individuals who do not identify as either male or female. It does so, first, by asking whether the failure by the state to provide for the legal recognition of a third gender violates transgender person's right to dignity. Second, the enquiry proceeds to discuss whether s9(3) of the Constitution (which prohibits unfair discrimination on any ground, including on the listed grounds of sex, gender and sexual orientation) requires the state to recognise a third gender. After discussing the lived experiences of transgender persons in South Africa, the thesis reviews the terminology and concepts relevant to this area of study, in order to lay the foundation for the subsequent examination of relevant case law, the Constitutional Court's approach to dignity, and the analysis of the application of s(9)(3). I submit that transgender persons fall within the Constitutional Court's definition of a vulnerable group in that they have suffered past patterns of disadvantage, they constitute a minority in South Africa and are subject to stereotyping and bias. Despite the Constitutional Courts erroneous pronouncement that transsexualism falls under the umbrella of sexual orientation, it is argued, rather, that since the expression of their gender identity by gender nonconforming persons shares many of the characteristics of the specified grounds listed in s9(3), unfair discrimination can be found on a ground analogous to those grounds listed in the Constitution. The failure to allow for recognition of a third gender is thus under-inclusive. It cannot be justified under the limitations analysis. Further, if objections were to be raised by the state that recognition is not feasible or affordable and is, hence, justified, I conclude that because there are ways to accommodate individuals who do not identify as binary which are not unduly taxing on the State, this argument would fail.
  • Thumbnail Image
    Item
    Open Access
    Freedom of Religion and the headscarf: a perspective from international and comparative constitutional Law
    (2013) Osman, Fatima; Chirwa, Danwood M
    his thesis analyses whether a legislative ban on wearing a headscarf breaches the right to freedom of religion, as such right is universally understood. It describes the ambit of the right to freedom of religion by examining the theoretical justification and importance of the right and thereafter analysing how the right is recognised in international and regional treaties and domestic constitutions. It demonstrates that religious freedom comprises of the right to hold a religion and the right to manifest a religion in the form of worship, observance, practice and teaching. Religious freedom, however, is not absolute and the thesis explains in the light of international and comparative case-law that the right to freedom of religion may be limited by a law that pursues a legitimate state interest and is reasonable. In light of this theoretical framework the thesis examines the practice of Muslim women wearing a headscarf and argues that the practice constitutes a manifestation of Islamic belief protected by the right to freedom of religion. Thereafter this thesis examines French, Turkish and German prohibitions on wearing a headscarf, the effect of these laws on Muslim women and the justifications furnished for such laws. It is argued that the state interest of preserving secularism relied upon to justify a headscarf ban is not legitimate and does not justify a headscarf ban. Furthermore, even where the state has a legitimate interest in preventing the coercion of young girls, promoting the equality rights of women and maintaining safety and order, a headscarf ban does not constitute a reasonable limitation of religious freedom. Ultimately, this thesis argues that a headscarf ban exacerbates the problems it is meant to solve and constitutes an unjustifiable infringement of religious freedom.
  • Thumbnail Image
    Item
    Restricted
    South African cinema after apartheid: A politicaleconomic exploration
    (2010) Treffry-Goatley, Astrid
    When South Africa was emancipated from the oppressive apartheid regime in 1994, it was a severely divided society in need of an inclusive national identity to bind its citizens and maintain peace. Therefore, the state targeted the cultural industries, including film, as a means of promoting symbolic representations of national unity. The film industry was further identified as a priority sector for economic growth and as a potential platform for equitable redress. This article discusses existing and emerging finance, distribution and exhibition structures in the post-apartheid film industry. It considers government interventions in the form of film policies and development strategies with the purpose of examining the influence of globalising forces, in particular neoliberalism, on the apparent market-orientation of such interventions. The results presented indicate that the post-apartheid vision of equality, freedom and diversity does not always sit comfortably with the neoliberal, free-market principles promoted in the Growth, Employment and Redistribution (GEAR) programme of 1996. Moreover, it suggests that in this commercial environment, the voices of the historically oppressed black majority, rather than enjoying a sense of artistic and creative freedom, can in fact encounter commercial censorship through the commodification of films for an export-orientated market.