Non-Discrimination Based on Sexual Orientation


Johan D. van der Vyver

The judgment of the U.S. Supreme Court in the case of Bostock v. Clayton County, decided on June 15, 2020, is, to say the least, quite controversial. It relates to non-discrimination based on sexual orientation in employment practices and has been applauded by many who champion the legal protection of homosexual and transgender individuals. The 6 to 3 majority decision was essentially focused on the question whether or not sexual orientation is included in the concept of “sex” within the confines of a provision in Chapter VII of the Civil Rights Act of 1964, which prohibits “discrimination against any individual . . . because of such individual’s . . . sex.” But is sexual orientation included in the concept of sex as envisioned way back in 1964 by drafters of the Civil Rights Act?

It is perhaps interesting to note that the Constitution of the Republic of South Africa, 1996 was the first in the world to provide constitutional protection to homosexual and transsexual persons by including sexual orientation in the list of prohibited grounds of discrimination in the constitutional non-discrimination provision.1§ 9(3). Its inclusion was indeed quite controversial. When a proposal was submitted to the Constitutional Assembly, which drafted the post-apartheid Constitution, there was strong opposition to the inclusion of sexual orientation in the non-discrimination provision in certain, mostly religiously inspired, groups. Members of the group proposed that Archbishop Desmond Tutu, head of the Anglican Church in South Africa, be invited to make a public statement — thinking that Archbishop Tutu as a theologian will come out against its inclusion in the non-discrimination provision. However, Archbishop Tutu responded by saying: “South Africa has a history of discrimination. In the ‘New South Africa’ there will be no discrimination at all on any grounds.” It was thereupon decided to include “sexual orientation” in Section 9(3).

The terminology was also in dispute. The original proposal referred to “sexual preference.” However, it was pointed out that “sexual preference” might also apply to persons practicing bestiality, and so the wording was changed to “sexual orientation.” It troubled me that in the United States, legal experts continued to refer to “sexual preference.” I was always struck by the number of speakers we had in the School of Law colloquiums who used the phrase “sexual preference,” and it is good to see that the U.S. Supreme Court has now also come to its senses in Bostock v. Clayton County by referring to “sexual orientation.”

As far as upholding the principle of non-discrimination based on sexual orientation is concerned, it should be noted that South African law upholds the principle of sphere sovereignty relating to decisions and practices of non-state organizations, for example religious institutions. This means that the State will in principle not interfere with such domestic decisions and practices. If a church or other religious institution has imposed disciplinary action against one of its members, a state court will only set the decision aside if it should appear that the church or religious institution has not upheld its own internal rules of procedure or the basic principles of justice. In the latter context, a state court will mostly only overrule the disciplinary decision if the rule of audi alteram partem (the right of the accused to state his or her case or to defend him- or herself) has not been applied. Implementation of the sphere sovereignty of religious institutions may be illustrated with reference to two quite interesting cases.

In December 2009, the Reverend Ecclesia de Lange, a Minister in the Methodist Church of Southern Africa in Rondebosch, Cape Town, entered into a same-sex marriage with Amanda van Aswegen. The Church, which does not condone same-sex marriages, suspended her in January 2010 from her post. De Lange was fighting to get her job back through internal church arbitration channels. The hearings were conducted behind closed doors in January 2011. A disciplinary committee recommended that De Lange “continue under suspension until such time as the Methodist Church of Southern Africa makes a binding decision on ministers in same-sex unions.” In a statement on Facebook and other websites, De Lange proclaimed: 

I desire to serve Jesus. I desire to be true to myself. I desire to minister within the Methodist Church of Southern Africa with integrity and be faithful to God’s call on my life. 

I have reached the point where I can no longer be silent. I have come to see that it is better to be rejected for who I am than to be accepted for who I am not.

Ecclesia de Lange was eventually defrocked because of her gay marriage. She thereupon brought action against the Church in the Constitutional Court under Article 9(3) of the Constitution, which prohibits discrimination based on sexual orientation. Her application was again unsuccessful2De Lange v. Presiding Bishop of the Methodist Church of Southern Africa for the time being & Another, 2016 (2) SA 1 (CC); 2016 (1) BCLR 1 (CC). because, on the basis of the principle of sphere sovereignty, the decision of the Church must be upheld by courts of law. She subsequently stated publicly that she will no longer contest the decision of the Church.

Discrimination based on sexual orientation by a church institution was also in issue in the case of Strydom v. Dutch Reformed Congregation, Moreleta Park, decided by the Equality Court, Transvaal Provincial Division on August 27, 2006.3Strydom v. Nederduitse Gereformeerde Gemeente, Moreleta Park, (2009) (4) SA 510 (Equality Court, TPA). Johan Daniel Strydom was employed by the Moreleta Park congregation of the Dutch Reformed Church as a music instructor (organ teacher) in its Arts Academy. He was fired by the Church authorities because he became involved in a same-sex relationship with another man. Mr. Strydom challenged his dismissal before the Equality Court and was awarded compensation in the amount of R.75,000 for pain and suffering and a further R.11,000 for loss of income. The Reverent Dirkie van der Spuy of the Moreleta Park congregation testified that elders and deacons of the Church may be gay but are not allowed to practice homosexuality. The dismissal of Mr. Strydom, according to the Equality Court, amounted to unbecoming discrimination under the Promotion of Equality and Prevention of Unfair Discrimination Act. The Church did not take the matter on appeal.

The Equality Court based its decision mainly on the fact that Mr. Strydom (a) served as an independent contractor, (b) was in no way involved in the spiritual calling of the Church, and (c) was not even a member of the particular Dutch Reformed Church which brought suit in the matter. The Equality Court made it abundantly clear that it would not have ruled against the Church if Mr. Strydom’s contractual obligations included functions that were part of the spiritual mission of the Church.

The dispute in Bostock v. Clayton County did not involve the sphere sovereignty of non-state institutions, but was centered upon the question whether or not sexual orientation is included in the concept of “sex” within the meaning of Section 703 of the Civil Rights Act of 1964, which prohibits discrimination in employment practices against any individual “because of such individual’s race, color, religion, sex, or national origin.” Must “sex” in this context be interpreted as it was perceived in 1964 or must it be applied with a view to contemporary understanding of the term? Whereas the majority decision was based on the contemporary understanding of the concept of “sex,” the dissenting judges preferred the meaning of “sex” within the mindset of drafters of the Civil Rights Act in 1964.

United States President John F. Kennedy addresses the nation on civil rights via television, speaking from the Resolute desk in the Oval Office of the White House, Washington D.C. Wikipedia

It is perhaps worth noting that the Civil Rights Act was a brainchild of President John F. Kennedy (1917-1963) and was essentially designed to combat racism. Its enactment was strongly opposed by what came to be referred to as “a claque of Southern Congressmen” on both sides of the Isle who attempted to filibuster the proceedings by proposing amendments to the Draft Statute in the hope that debates on these proposed amendments would transpire the timeframe for the adoption of the Act. Eighteen democratic Senators under the leadership of Senator Russell of Georgia, representing all Southern States except Tennessee and Texas, organized the longest filibuster in the history of the Senate. Four hundred and eighty-three amendments were proposed, over a hundred of which were voted on, but only one was adopted — one that related to the problem of double jeopardy by being tried for both a crime and criminal contempt based on the same act. The opposition to the Act was concerned with the policy of race relations and not with sex equality in employment. However, President Lyndon B. Johnson (1908-1973) was equally committed to adopting the Act within the prescribed time frame.

In the end, proponents of the Act simply accepted the proposed amendments without question so as to avoid time-consuming debates on the proposed amendments. And then opponents of the Act came up with an ingenious proposal launched in the House of Representative by Howard Smith of Virginia: add the word “sex” to the grounds of unlawful discrimination in employment practices. Proponents of the Act again simply accepted the amendment for no other reason than to counteract the filibuster attempt.4 See J.D. van der Vyver, The Relevancy of the Irrelevancy of Sex in the United States, 4 Int’l & Comp. J. of S. Afr. 339 (1971). The simple fact is that inclusion of “sex” in the non-discrimination provision of Chapter VII of the Civil Rights Act was not in the least inspired by concerns for gender equality in employment practices but was exclusively a filibuster strategy. In the mindset of a bulk of the population in the 1960’s, women had an inferior status in life, and the idea of including “sex” in the non-discrimination provision in the mindset of Howard Smith and the claque of Southern Congressmen was so outrageous that it could not possibly be accepted by proponents of the Civil Rights Act. But, the bulk of those who wanted the Civil Rights Act to be enacted accepted its inclusion simply to counteract the filibuster. 

It is important to note that “sex” in this context was exclusively designated to denote being a man or a woman. The provision was first applied successfully in the case of Phillips v. Martin Marietta Corporation,5400 U.S. 542 (1971). when an employer would not consider the application for employment of a woman with preschool age children while the very same employer did not disqualify men with preschool age children. Earlier, in Cooper v. Delta Airlines Inc.,6274 F. Supp. 781 (E.D. La. 1967). firing an air assistant because she got married was not regarded as a violation of the Civil Rights Act because the employer distinguished between a married and unmarried female employee and not between a married woman and a married man. However, following the decision of the U.S. Supreme Court in Phillips v. Martin Marietta Corporation, this provision became a viable tool for promoting gender equality in the United States.

It is quite evident that inclusion of “sex” in the non-discrimination provision of Chapter VII of the Civil Rights Act of 1964 was not designed to include sexual orientation, but the majority in Bostock v. Clayton County based their decision exclusively on the meaning attributed to the concept of “sex” within the present timeframe. This might not be an appropriate interpretation of the concept of “sex” within the meaning of the Civil Rights Act, but it has now also set the law of the United States on a track founded on basic principles of justice. ♦


Johan D. van der Vyver is an I. T. Cohen Professor of International Law and Human Rights at Emory University and a former professor of law at the University of the Witwatersrand in Johannesburg, South Africa. He is an expert on international criminal Law, international human rights law, and public international law and has been involved in the promotion of human rights in South Africa.