Intersectionality in the South African Constitution’s Equality Clause

Abstract

The South African Constitutional Court has long accepted intersectionality as a framework to identify the disadvantage that the right to equality in s 9 of the Constitution of the Republic of South Africa, 1996 seeks to eradicate. However, it has never been clear what impact intersectionality has in determining whether differentiation is rational under s 9(1), whether there is or isn’t unfair discrimination under s 9(3) (the Harksen test) and whether a purported remedial or restitutionary measure is constitutionally protected under s 9(2) of the Constitution (the Van Heerden test). Further, there is no clarity on how intersectionality shapes remedial design once a court has found a breach of s 9. Through an analysis of the Constitutional Court’s intersectional equality jurisprudence and drawing on intersectionality theory, this article seeks to illuminate how intersectionality has and ought to shape the South African court’s approach to the right to equality.