Constitutional Court of South Africa

“ People are subject to extensive prejudice because of what they are or what they are perceived to be, not because of what they do. The result is that a significant group of the population is, because of its sexual nonconformity, persecuted, marginalised and turned in on itself.” [23]
[38] ⁠I find that the differential age of consent provided for by sections 14 (1) (b) and 14 (3) (b) discriminates unfairly on the grounds of sexual orientation. Justification for the discrimination not having been shown, the provisions are unconstitutional and therefore invalid. ”

“ Is the discrimination unfair?
[35] ⁠In terms of sections 9 (3) and 9 (5) of the Constitution, discrimination based on grounds of sexual orientation creates a presumption of unfairness unless the contrary is demonstrated. It is incumbent upon those who intend to uphold or protect the impugned legislation to demonstrate the absence of unfairness. [22] None of the respondents in the Supreme Court of Appeal or before this Court proffered evidence sufficient to conclude that the discrimination was fair. ”

“ The final step is to determine whether the violation is justified under the general limitations provision in section 36 of the Constitution.
[31] ⁠Section 14 (1) (a) sets the age of consent for sexual intercourse between an adult man and a girl at 16 years for the girl. Read with section 14 (1) (a) , section 14 (1) (b) provides, in the case of what are termed indecent acts between an adult man and a girl, an age of consent of 16 years for the girl but 19 years for a boy, if the acts are between an adult man and the boy. ”