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Refereed articles

From individual protection to recognition of relationships: samesex couples and the South African experience of sexual orientation reform

Usha Jivan explores the legal discourse about equality, in particular homosexual equality, and illustrates how it has traversed sites that may be labelled condemnation, compassion, condonation and celebration.

In the pre-democratic era homosexuality was dealt with in the harshest manner. Since the advent of the new Constitution the courts have provided protection to individuals in a series of cases, allowing people in same-sex life partnerships to be treated the same as spouses for various purposes. In all these cases the courts have shown compassion for same-sex life partnerships where such couples have conducted themselves in ways that replicate heterosexual marriage. Profound shifts took place in our legal landscape following the demand for the right to same-sex marriage as a means of celebrating such unions. This resulted in the Civil Union Act of 2006 which provides for the registration of civil unions, by way of either a marriage or civil partnership, between two persons. However, the author submits that the Act is merely an attempt to pacify gay and lesbian people by allowing them to call their union a marriage if they so wish. A compromise solution falls short of true celebration and hence, of full equality.

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