Cathi Albertyn

Jurisdiction, interpretation, procedure and enforcement; prohibition against unfair discrimination; the prohibition of hate speech, harassment and dissemination or publication of information that unfairly discrimates; illustrative list of unfair practices in certain sectors.https://ecommons.udayton.edu/books/1006/thumbnail.jp

This note explores facets of the right to equality and its accompanying prohibition of unfair discrimination. It does so from a perspective that might at first glance appear esoteric by focusing on discrimination on the basis of physical appearance. South Africa is a country with a past characterised by persistent human rights violations, systemic patterns of gross social, economic and political inequality, tyranny and oppression. The constitutional order attempts to remedy the lingering after-effects of apartheid and its accompanying social evils. It might see)ll pointless to argue that the unattractive are worthy of rights-based protection in a society preoccupied with the eradication of discrimination based on race, gender, sexual orientation, religion and culture. However, to ignore negative stereotyping and resulting disparate treatment of those deviating from socially ingrained standards of physical attractiveness is to turn a blind eye to the very nature of discrimination and its consequences. Appearance overlaps significantly in many respects with a number of the grounds upon which our society prohibits unfair discrimination. Race, sex, age and disability all manifest to varying extents in physical appearance. Stereotypes linked to these grounds are often reinforced by stereotypical perceptions related to physical appearance and discrimination on appearance-related characteristics frequently coincides with discrimination on such 'prohibited' grounds. An analysis of appearance discrimination further highlights aspects of unfair discrimination on grounds other than those expressly prohibited. Observations in this note thus pertain not only to the unattractive, but also to other groups whose defining characteristics render them vulnerable to unfair discrimination.

This note explores facets of the right to equality and its accompanying prohibition of unfair discrimination. It does so from a perspective that might at first glance appear esoteric by focusing on discrimination on the basis of physical appearance. South Africa is a country with a past characterised by persistent human rights violations, systemic patterns of gross social, economic and political inequality, tyranny and oppression. The constitutional order attempts to remedy the lingering after-effects of apartheid and its accompanying social evils. It might see)ll pointless to argue that the unattractive are worthy of rights-based protection in a society preoccupied with the eradication of discrimination based on race, gender, sexual orientation, religion and culture. However, to ignore negative stereotyping and resulting disparate treatment of those deviating from socially ingrained standards of physical attractiveness is to turn a blind eye to the very nature of discrimination and its consequences. Appearance overlaps significantly in many respects with a number of the grounds upon which our society prohibits unfair discrimination. Race, sex, age and disability all manifest to varying extents in physical appearance. Stereotypes linked to these grounds are often reinforced by stereotypical perceptions related to physical appearance and discrimination on appearance-related characteristics frequently coincides with discrimination on such 'prohibited' grounds. An analysis of appearance discrimination further highlights aspects of unfair discrimination on grounds other than those expressly prohibited. Observations in this note thus pertain not only to the unattractive, but also to other groups whose defining characteristics render them vulnerable to unfair discrimination.

The South African Journal on Human Rights (SAJHR) celebrated its 30-year anniversary in 2014, coinciding with 20 years of democracy. To mark this, the journal held a conference on 'Transformation and the Courts' in January 2015. We invited papers to engage the idea of the Constitution of the Republic of South Africa, 1996, as a transformative document. In doing so, we acknowledged that the meaning, nature and form of transformation was understood in different ways, with diverse ideas about its possibilities and constraints. Transformation can be understood as an aspiration, a particular set of ends or as a process. Each meaning gives rise to questions and disagreement. What kind of society does the idea of transformation envisage? How do we give that content through the values and rights enshrined in the Constitution? How do we address the old and new inequalities in our constantly shifting society? Does transformation signify, as Cathi Albertyn and Beth Goldblatt have argued, the dismantling of social and economic norms, structures and processes that continue to dominate people's lives and prevent them from fulfilling their potential? Or is the aim of transformation more individual, more concerned with the formation of identity, more open-ended, fragmented and uncertain? The role of the law and courts in transformation is also a matter of debate. Karl Klare, widely credited with inspiring interest in transformative constitutionalism, alerted us to the limitations of using law as a means of social change, focusing in particular on the role of legal interpretation and adjudication in enabling or restricting transformative outcomes. What have we learnt about the use of law and courts to advance transformation? Can we use, or even push the boundaries of, liberal legalism to achieve more transformative ends? How do we understand the relationship between legal and other means? Many of these, and other, debates have been published in the SAJHR over the years. Twenty years into democracy, we thought it appropriate for the SAJHR to convene a conference to interrogate and reflect on transformation and transformative constitutionalism: its possibilities, its limits, its gains and, even, its defeats. Is it an idea that should guide us over the next 20 years?

FACING THE CHALLENGE OF TRANSFORMATION: DIFFICULTIES IN THE DEVELOPMENT OF AN INDIGENOUS JURISPRUDENCE OF EQUALITY* Cathi Albertyn** Beth Goldblatt*** 1 Introduction - Equality and Transformation The Constitution is the political and legal ...