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Eric C. Christiansen, Ending the Apartheid of the Closet: Sexual Orientation in the South African Constitutional Process, 32 N.Y.U. J. INT’L L. & POL. 997 (2000).
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Inclusion of anti-gay discrimination prohibitions in the South African Constitution is yet another surprising aspect of the stunning history of South Africa. Without precedent in domestic or foreign law, the South African Constitution secured equal protection and benefit of law for its gay and lesbian citizens. This Note suggests a three-part explanation, positing the interrelation of an historic, an ideological, and a procedural element. The stage for this unprecedented protection was set by the unique history of South Africa: the rise of gay and lesbian visibility contemporaneously with the post-apartheid reformulation of the country as a human rights state. Justification was provided by the examination of sexual orientation protections as a presumptive corollary of the ANC anti-discrimination ideology. And, an autocratic constitutional drafting process codified progressive human rights standards despite uncertain claims of public support and ambiguous international law precedent.
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