South Africa’s post-apartheid constitutions were the first in the world to contain an explicit prohibition of discrimination on grounds of sexual orientation, and that prohibition established the foundation for marriage equality and broad judicial and legislative protection of gay rights in South Africa. The source of this gay rights clause in the South African Constitution can be found in the African National Congress’s decision to include such a clause in the ANC’s A Bill of Rights for a New South Africa, published when the apartheid government of South Africa was still in power. This article traces the story of that decision, and demonstrates that the gay rights clause was included in the ANC’s draft Bill of Rights as a direct result of the ANC’s Women’s Section’s demand that the ANC confront and address a broader problem: the oppression of women. First, the article lays out the context, explaining the origins of the ANC’s Constitutional Committee, its work in presenting alternative models for a future constitutional order, and its success in securing the ANC’s commitment to true multi-party democracy and an enforceable bill of rights. The article then shows that leaders of the ANC’s Women’s Section, dissatisfied with the ANC’s constitutional proposals as they stood, sparked a thorough-going examination of the problem of sexism and women’s oppression. This examination prompted the ANC to recognize the fundamental human right of gay men and lesbians to be who they are, and led the ANC to prohibit discrimination on grounds of sexual orientation in its draft Bill of Rights.
Joseph S. Jackson, Roots of Revolution: The African National Congress and Gay Liberation in South Africa, 44 Brook. J. Int'l L. 613 (2019)