Unlike children, gays and lesbians do not have a special section in the Bill of Rights devoted to their rights. Rather, the relevant part of section 9 of the Constitution, entitled "Equality", states that:

"(3) The state may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth."

Gays and lesbians are protected by the inclusion of sexual orientation as one of the listed grounds on which unfair discrimination may not take place.

The listing of specific cases in section 9(3) does not mean, however, that to be considered unconstitutional, discrimination would have to be based on one of the grounds mentioned.

Gay rights might enjoy protection even in the absence of the specific reference to sexual orientation. But their explicit mentioning gives our Bill of Rights a special place in the world: South Africa was the first country to enshrine gay rights in its Constitution and, in so doing, provide its citizens with constitutional protection from discrimination on the basis of their sexual orientation.

A number of decisions handed down by the Constitutional Court confirm that this section prohibits the state from unfairly discriminating against gays and lesbians. The legal term that describes this is "vertical discrimination", because it operates from the top (from the level of the government) downwards (to the citizen).

But what about private individuals - people such as employers, doctors, hotel owners or shopkeepers - who can also be a source of discrimination? This question of "horizontal discrimination", committed by ordinary people (or even organisations and companies), is tackled by section 9(4) of the Constitution. It says:

(4) "No person may unfairly discriminate directly or indirectly against anyone on one or more grounds in terms of subsection (3)."

Section 8(2), which says a provision of the Bill of Rights binds a natural or a juristic person if applicable, is also relevant here.