perform oral sex on a man, but a man may not. A woman may receive anal sex from a man62, but a man may not etc.. The only distinction which makes the act criminal or otherwise is the participant’s gender or sex. Even more obviously, it seems to be accepted that same-sex sexual relations between women are no longer an offence 63. Thus women may do what men may not do, that is engage in sexual acts with someone of their own sex. On a more subtle level, discrimination against gays and lesbians constitutes discrimination on the basis of gender as it seeks to entrench gender stereotypes. In the same way the racial oppression under apartheid South Africa required discrete racial classifications, so gender oppression demands that there is no blurring of the lines between genders. Gays and lesbians are often seen as subverting gender stereotypes and are thus seen as threatening to the patriarchal order64. This aspect of discrimination on the basis of sex or gender, has been made explicit in CEDAW, the Convention on the Elimination of Discrimination against Women, which in Article 5(a) provides: States parties shall take all appropriate measures: a. To modify the social cultural patterns of conduct of men and women, with a view to achieving the elimination of prejudices and customary and all other practices which are based on the idea of the inferiority or superiority of either of the sexes or on stereotyped roles for men and women; [emphasis added]. Zimbabwe is a signatory to this convention. Similarly, the judgement of the Human Rights Committee in Toonen v Australia65 found that Tasmania’s laws criminalising homosexual activity violated the International Covenant on Civil and Political Rights. In so doing the committee referred to the equality provisions in the covenant and noted that the reference to “sex” in articles 2(1) and article 26 is to be taken as including sexual orientation. Despite these fairy cogent arguments, judicial precedent and the authority of the Human Rights Committee, even the obvious arguments that Zimbabwe’s law proscribing consensual adult male same-sex constitute gender discrimination have failed in our courts. The point was raised by defence Counsel in S v Banana66 who urged against the sole count of consensual sodomy on precisely this basis. In his judgement Chidyausiku JP simply avoided the point, paraphrasing the now notorious judgement of Bowers v Hardwick67, and holding: Does the Constitution create and confer on the homosexual a fundamental right to penetrate another male per anum? ... I am not aware of any provision in the Constitution that creates such a right or seeks to protect an already existing right of a homosexual to penetrate another per anum68. 62 R v Masuku 1968 RLR 332 63 S v Kampher 1997 (4) SA 460 (C) at para. 21 and compare Chidyausiku, JP’s tacit acceptance of this in S v Banana HH 221-98 at p 71. 64 See generally in this regard Law, S Homosexuality and The Social Meaning of Gender 1988 Wis L. Rev. 187. 65 Communication No 488/1992 66 ref. 67 478 US 186 (1986) 68 Chidyausiku, JP does not specifically refer to Hardwick but compare Hardwick at p 145 and the plagiarism is obvious.