is no reasonable relationship of proportionality between the means employed and the aim sought to be realised11. The jurisprudence of Supreme Court of the United States is well developed in this regard and is mirrored in other jurisdictions, albeit with differing terminology12. The United States Supreme Court has distinguished three kinds of discrimination each of which gives rise to a different level of judicial review. Laws, which discriminate on the basis of some natural and immutable characteristic, such as race, are regarded as “suspect classifications” subject to “strict scrutiny”. The legislator must satisfy the court that the discrimination serves a “compelling government interest”. Few laws meet this rigorous test. A second level of quasi-suspect discrimination is subjected to “intermediate scrutiny”. Discrimination on the basis of gender would fall into this category. Here the requirement is that the law bears a substantial relationship to an important government interest. These two levels attract rigorous judicial review and jointly fall within a category known as “heightened scrutiny”. Classifications falling outside these two levels may still be subject to judicial review, but the onus then lies with the complainant who must show that the legislation complained of does not bear any rational relationship to a legitimate government purpose 13. THE NEED TO SPECIFY SEXUAL ORIENTATION From discussion above, two issues arise for the purposes of this paper. Firstly, whether discrimination on the basis of sexual orientation can be excluded from the requirement of equality demanded by international law, on the basis that it serves a legitimate government purpose, such as public morality, and secondly, if not, whether sexual orientation should appear, or needs to appear, explicitly in anti-discrimination clause or whether it is adequately dealt with in a catch-all phrase which prohibits discrimination on the basis of any “other status”. To address these issues it is necessary to consider what is meant by “sexual orientation”. Sexual Orientation While sexual orientation immediately brings gay rights to mind, there is nothing in the phrase itself that requires that this be so. We all have a sexual orientation, whether it is homosexual, heterosexual, bisexual, asexual, transsexual, intrasexual, etc. Sexual orientation encompasses more than sexual conduct. It may also encompass the direction of sexual attraction and a concomitant life-style. The term “homosexual” is of very recent vintage; the suggestion being that it entered our lexicon around 185014. This is not of course because no one engaged in same-sex activity prior to this date, but because same-sex activity was merely an action, what one did, not what one was. While legal prohibitions on same-sex activity existed in ancient civil and canonical codes sodomy was a category of forbidden acts; the perpetrator was nothing more than the juridical subject of them. The nineteenth-century homosexual became a personage, a past, a case history, and a childhood, in addition to being a type of life, a life form, and morphology, with an indiscreet anatomy and possibly a mysterious physiology 11 Belgian Linguistic Case, 11 Y.B. European Conventions on Human Rights 832, 1968 at p. 34. Quoted in Henkin op. cit. at p. 261 12 Compare for example President of RSA v. Hugo, 1997(4) SA 1 CC 13 Heinze op. cit. p. 232 14 Harvard Law Review Editors Developments – Sexual Orientation and the Law, Harvard Law Review 102 No. 7, Mau 1989 pp 1511 – 1671 at p. 1514