ground for non-discrimination in the same manner as race, which is immutable. The
question as to whether sexuality is nature or nurture has not been resolved, is not likely
to be, and is probably not, in any event, relevant. However, the same systems of
prejudice are applied to those discriminated against on the basis as race, as to those
discriminated against on the basis of sexual orientation. Three points arise in this regard.
Firstly, there is judicial authority for the notion that sexual orientation is to be treated as
immutable. In Watkins v US Army 49, a case concerning discrimination against a gay man
in the military the court found that:
“Immutability” may describe those traits that are so central to a person’s identity
that it would be abhorrent for government to penalise a person for refusing to change
them…50
As Heinze notes:
Psychologists as well as jurists have increasingly noted [homosexuality’s]
immutability: it can be brutally impeded, but cannot be changed. Attempts to change
homosexual orientation through often cruel and humiliating medical or
psychological procedure have, at most, shattered a person’s sexuality generally, but
have never succeeded in specifically changing sexual orientation.51
Secondly, it is wrong to suggest that the law should only protect lifestyles where
there is no element of choice, and thirdly, it is universally accepted that discrimination
on the basis of immutable characteristics is particularly odious. Those who discriminate
against people on the basis of sexual orientation should at least consider the implications
of their prejudice should their belief in mutability prove wrong.
From the pronouncements of President Mugabe, quoted above, it is clear that
there is no prospect of gays and lesbians obtaining change through executive example
and leadership. The legislature has also pandered to populist prejudice, exacerbating
hostility towards gays and lesbians in parliamentary debates on the issue 52. The usual
language of prejudice is present throughout. By way of one of many available examples,
Member of Parliament Anias Chigwedere stated to parliament:
The whole body is far more important than any single dispensable part...when your
finger starts festering and becomes a danger to the body you cut it off…. The
homosexuals are the festering finger.53
It is interesting to compare this statement with that of Nazi officer explaining his
role in the execution of Jews:
They are an inferior race.… It’s like having a rosebush and the rosebush has got
greenfly on it. Then you have to get rid of the greenfly54.
The judiciary has likewise been consistent in its support for popular prejudice
against gays and lesbians. Although few cases of adult consensual homosexual sex come
49
847 F.2d 1329 (1988)
50
at p. 1347
51
see Heinze op. cit. at p. 160 and n 17
52
see in particular the Parliamentary Debates for 28th September, 199, esp. at cols. 2779, 2781 and
8th November, 1995, col. 2988 and 30th November, 1995, col. 4304.
53
54
Parliamentary debates, 28th September, 1995 col. 2770
Interview with Jurgen Kroeger, Nazi Execution Squad Interpreter, 1941 – 1942 to whom the
statement was allegedly made by a Nazi Officer after the killing of Jews by firing squad, shown
in the BBC documentary Peoples’ Century.
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