In the late nineties, Prof Francisco Valdes from the California Western School of Law, set out to address what he saw as a dangerous loophole in American anti-discrimination law. The loophole existed in the context of sexual discrimination laws. At the time, discrimination on the grounds of sex and gender was outlawed, but, as a result of the (in)famous decision in Bowers v Hardwick, discrimination on the ground of sexual orientation remained legal. Valdes argued that under this regime, the loophole existed in the fact that courts all too often recharacterized (illegal) sex and gender discrimination as (legal) sexual orientation discrimination.

At the heart of Valdes’s argument was what he called the pervasive conflation of sex, gender and sexual orientation in Euro-American law and society. This conflation remains the legal and social status quo in jurisdictions across the world. Sex is conflated with gender by deriving a masculine or feminine gender from the male or female (external genital) sex of a person. Gender and sexual orientation are conflated by deriving a sexual orientation from a butch, macho or effeminate gender (which is, of course, derived from sex). For instance, a woman who does not perform the ‘feminine’ gender is labeled a lesbian; a man who does not perform a ‘masculine’ gender is labeled gay. Sex and sexual orientation is conflated by deriving a sexual orientation from looking at the sex of the members of a coupling – if the couple consists of two people of the same sex, its members are regarded as gay.

The question that arises from the above is, of course: who derives inthis way, who does the labeling, who does the regarding? Valdes’s unapologetic answer is that it is what he calls the ‘heteropatriarchy’ which conflates, confuses, labels and regards bodies in this way. Heteropatriarchy is a blend of androsexist and heterosexist values which has the ideological upper hand in society in the sense that it dominates our views on sex, gender and sexual orientation. The conflation, labeling and regarding that I mentioned above thus takes place from the point of view of a society’s patriarchal gaze. Valdes argued, accordingly, that the conflation both reflects, projects and protects the heteropatriarchy. If patriarchy is simply understood as  male and masculine dominance / superiority in a society, the conflation of sex and gender, for instance, plays into its hands by assigning the (in its view ‘inferior’) feminine gender to all females and then proceeding to exercise its power to penalize females who do not perform the (in its view ‘inferior’) feminine gender. In this way, women are kept in their inferior ‘place’, along with other sexual minorities.

In order to close the loophole, Valdes’s bottom line was that sexual orientation discrimination is never just that – it is a species of sex-based gender discrimination. To see how this is so, consider the American case of Smith v Liberty Mutual Assurance Co. Smith applied for a job as a mail clerk at a large insurance company but was denied employment because the supervisor who interviewed him found him to be socially “effeminate” and therefore “not too suited for the job.” Smith had identified four hobbies on his application for employment: “[p]laying musical instruments, singing, dancing and sewing.” The employer candidly stated that Smith had not been hired because the interviewing supervisor believed that he was effeminate and “thus suspected Smith of homosexuality.” Smith argued that the refusal to hire him amounted to unlawful discrimination on the basis of sex. The employer reasoned that its refusal was lawful on the basis of the suspicion of homosexuality (the then lawful sexual orientation discrimination). The court ruled in favour of the employer, holding that the anti-discrimination law does not prohibit discrimination based upon ‘affectional or sexual preference’. However, as Valdes argues, it was Smith’s social gender (effeminacy) that formed the basis of the discrimination – not his actual sexual orientation. In fact, Smith argued that the discriminationagainst him was sex-based. The court, however, framed the sex-derived gender discrimination as sexual orientation discrimination in order to reach the conclusion that the employer’s refusal to hire Smith was lawful. And this happened, because the Court conflated both sex, gender and sexual orientation.

From the above, we can see the wisdom of the South African Constitution’s inclusion in the equality clause of ‘sexual orientation’ as a seperate ground of presumed unfair discrimination. The Constitutional Court’s jurisprudence on sexual orientation discrimination has been rightly celebrated, revered and famously culminated in South Africa becoming the only country in Africa to legalize same-sex marriage. Yet, there remain many an empirical, social context in South Africa where discrimination on the ground of sexual orientation is simply denied, accepted and thus allowed to continue unabated. It is as if, in these contexts, sexual orientation discrimination is regarded as something lesser, something that is not as ‘bad’ as gender discrimination or race discrimination, something that is actually acceptable or okay.

Employment is one such context. Valdes’s work, as well as that of many a constitutional equality theorist here and elsewhere, shows that sexual orientation discrimination is never simply discrimination on the grounds of a sexual orientation. In a pervasively patriarchal society such as ours, it is always also discrimination on the grounds of sex and gender. Where an employee performs gender atypicality, the patriarchal gaze fixes her as lesbian or queer. But it goes further than this in that it fixes her as automatically inferior, automatically less capable of getting the job done. She is passed over for promotion, a salary increase, contact with clients – in short, treated as if she is professionally inferior to her gender-conforming colleagues. Where the employee’s actual sexual orientation is non-heterosexual and this is known in the workplace, direct heteropatriarchal discrimination takes place but it is most often vehemently denied.

What is a gay / lesbian / trans employee to do under such circumstances? The truth is that – if anecdotal evidence is taken as symptomatic – most enter the closet at the moment that they set foot in the work place. And they do so because they know that the heteropatriarchal hypermasculinity at the order of the day in the corporate and professional working world is relentless and unforgiving – if they perform and embody their queerness at work the patriarchy will eventually find a lawful way to discipline them back into the strictures of heteronormativity (‘your dress is not acceptable in the profession’, ‘this is not a job for a sissie’, ‘the client won’t appreciate your manner’). This is one of the reasons why feminists and other advocates of equality need to recognize that sexual orientation discrimination should be as concerning to them as any of the other grounds of unfair discrimination. If the concern with and emphasis on ‘intersectionality’ (which is now so much a part of our public discourse in South Africa) is really serious, it will recognize that sex, gender and sexual orientation are as intertwined as other recognised grounds of discrimination such as ‘race’, ‘ethnic or social origin’, ‘colour’, ‘religion’, ‘belief’ and ‘culture’. Intertwinement, however, does not mean that we are ever justified in conflating these grounds. As Valdes shows over and over again: conflation works only to perpetuate dominant configurations of power in our society.


  • Jaco Barnard-Naudé is Professor of Jurisprudence and Co-director of the Centre for Rhetoric Studies in the Department of Private Law at the University of Cape Town. In the United Kingdom, he is the British Academy's Newton Advanced Fellow in the School of Law at Westminster University and Honorary Research Fellow at the Birkbeck Institute for the Humanities, University of London. He is a board member of the Institute for Justice and Reconciliation (IJR) and of the Triangle Project, Cape Town.


Jaco Barnard-Naude

Jaco Barnard-Naudé is Professor of Jurisprudence and Co-director of the Centre for Rhetoric Studies in the Department of Private Law at the University of Cape Town. In the United Kingdom, he is the British...

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