Section 9
The Equality Clause
Sex and gender no longer diminish status.
The clause
Constitution s 9 lists sex, gender and sexual orientation as grounds on which unfair discrimination is prohibited. These no longer diminish status or capacity. The old common-law marital power over wives has been abolished.
Sex vs gender
Sex = biological (male, female, intersex). Gender = cultural and social roles, expectations and identity. SA law recognises and protects both — they are distinct concepts.
Key Rule
Constitution s 9 prohibits unfair discrimination on sex, gender and sexual orientation. Marital power is abolished.
Common Mistake
Equating 'sex' with 'gender'. They are distinct concepts — both listed grounds under s 9 of the Constitution.
Fair vs Unfair
The Scales of Fairness
Fair differentiation
The law may treat people differently on sex where it pursues a legitimate purpose — redress, restitution or substantive equality. Examples: customary polygamy (Recognition of Customary Marriages Act 120 of 1998), affirmative action (Employment Equity Act 55 of 1998).
Unfair discrimination
Differentiation becomes unfair when it impairs human dignity or perpetuates disadvantage on a listed s 9 ground of the Constitution. Courts assess context, purpose and impact.
Key Rule
Differentiation is fair only where it pursues redress or substantive equality; unfair when it impairs dignity (context · purpose · impact).
Act 49 of 2003
The Registry of Identity
The Act
The Alteration of Sex Description and Sex Status Act 49 of 2003 lets a person apply to the Director-General of Home Affairs to alter the sex description on the birth register, aligning legal status with lived identity.
Who may apply
- Persons who have undergone gender reassignment (transgender)
- Intersex persons (naturally non-typical characteristics)
- Transgender persons seeking record alignment
The historic position (and how it changed)
Before the Constitution, sex was treated as fixed at birth and a reassignment operation did not change it. In W v W a marriage between a man and a post-operative transsexual woman was held void. That premise has since fallen away: Act 49 of 2003 lets the altered sex govern legal status, and the man-and-woman requirement for marriage was struck down in Fourie (now the Civil Union Act 17 of 2006). W v W is therefore of historical significance only.
Key Rule
Act 49 of 2003 alters the sex description on the birth register; once altered, the person is treated as the new sex for all legal purposes — and it expressly covers intersex persons too.
Common Mistake
Citing W v W as good law. It reflects the pre-constitutional position; after Act 49 of 2003 and Fourie the altered sex governs and marriage need not be man-and-woman.
Leading Cases
W v W1976 (2) SA 308 (W)Pre-constitutional rule — a sex-change operation did not alter legal sex, so a marriage involving a transsexual person was void. Now displaced by Act 49 of 2003 and the constitutional dispensation.
Facts. A man married a person who had undergone a male-to-female sex-change operation. When the marriage later broke down, its validity was put in issue.
Legal question. Did the reassignment operation change the person's legal sex, so that a valid marriage existed?
Judgment. The court held the marriage void — the operation did not change the party's legal sex.
Significance. Adopted the Ormrod test (from Corbett) into SA law. Explicitly overridden by the Alteration of Sex Description and Sex Status Act 49 of 2003.
Exam tip. Cite W v W only as the historic position, then show how Act 49 of 2003 and Fourie changed it. Never present it as current law.
Minister of Home Affairs v Fourie2006 (1) SA 524 (CC)The common-law man-and-woman definition of marriage was unconstitutional; led to the Civil Union Act 17 of 2006.
Facts. A same-sex couple challenged the common-law and Marriage Act definition of marriage as a union between one man and one woman.
Legal question. Is the man-and-woman definition of marriage consistent with the rights to equality and dignity?
Judgment. The Constitutional Court declared the definition invalid but suspended the order to give Parliament time to cure the defect — which it did through the Civil Union Act 17 of 2006.
Significance. Removed the man-and-woman requirement for marriage. Together with Act 49 of 2003, it leaves W v W of historical interest only.
Exam tip. Use Fourie to show the constitutional shift away from the W v W premise; pair it with the Civil Union Act 17 of 2006.
Case Study
The Semenya Arena
Where sex/gender status meets equality.
The facts
Caster Semenya, the SA middle-distance athlete, is intersex with naturally elevated testosterone. World Athletics (IAAF) barred her from certain women's events unless she lowered her testosterone.
What was actually decided
CAS (2019) found the DSD regulations discriminatory but proportionate (2:1). The Swiss Federal Tribunal (2020) dismissed her appeal. The ECtHR Chamber (2023) found against Switzerland on the inadequacy of its judicial review — not on the regulations' validity. The Grand Chamber (10 July 2025) narrowed this to a violation of Art 6 § 1 (fair hearing) only, holding the other complaints inadmissible for want of a jurisdictional link to Switzerland. No court annulled the regulations; World Athletics replaced them of its own accord from 1 September 2025.
How to use it
This is comparative material, not South African authority. No SA court has ruled on the matter, and none of these bodies applied the SA Constitution — CAS and the Swiss Federal Tribunal applied Swiss arbitration law; the ECtHR applied the European Convention. Use the arena as our own analogy for practising the s 9 fair/unfair differentiation enquiry on a listed ground — but never write that a court applied s 9 here.
Leading Cases
Semenya v Switzerland (and the CAS/Swiss proceedings)CAS 2018/O/5794; Swiss Federal Tribunal 4A_248/2019; ECtHR app. no. 10934/21Comparative illustration only. Semenya ultimately succeeded at Strasbourg on the fairness of the hearing Switzerland afforded her (Art 6 § 1) — not on a ruling that the DSD regulations were unlawful discrimination.
Facts. Caster Semenya, an intersex South African athlete with naturally elevated testosterone, was barred from certain women's events unless she lowered it. She challenged World Athletics' DSD regulations before the Court of Arbitration for Sport, then the Swiss Federal Tribunal (which supervises CAS awards, CAS being seated in Lausanne), and finally the European Court of Human Rights — against Switzerland, not World Athletics.
Legal question. Does differential treatment based on natural biological characteristics amount to unfair discrimination — and did the Swiss courts review that question adequately?
Judgment. CAS (2019), by 2:1, found the regulations discriminatory but a necessary, reasonable and proportionate means of preserving fair competition. The Swiss Federal Tribunal (2020) dismissed the appeal on the sole ground available to it (substantive public policy). The ECtHR Chamber (2023), 4:3, found Switzerland violated Art 14 with Art 8, and Art 13 — on the inadequacy of Swiss judicial review, not on the validity of the regulations. The Grand Chamber (10 July 2025) narrowed this: a violation of Art 6 § 1 (fair hearing) only, the Swiss court having failed to conduct the rigorous review required; the Art 8/13/14 complaints were held inadmissible for want of a jurisdictional link to Switzerland.
Significance. An illustrative comparative study of sex/gender status and equality reasoning, and of the limits of judicial review over compulsory sports arbitration. Note what it did not do: no court annulled the DSD regulations, which remained formally in force (World Athletics replaced them with new eligibility rules from 1 September 2025 of its own accord).
Exam tip. Use as a comparative illustration only — never cite it as SA authority or claim a court applied s 9. Be precise about the outcomes: Semenya's ECtHR win was about the quality of the hearing she received in Switzerland, not a ruling that the regulations were unlawful. No South African court has ruled on the matter.