before the courts, the judiciary has been quick to pronounce its condemnation, not of the fact sexual act was with a minor or forced, where this is the case, but of the fact that the sex was with a person of the same sex55. Even where the sex is between two consenting adults the judiciary has voiced its prejudice. In the case of S v Roffey56, a case of consensual adult same-sex sex, the magistrate in the court a quo in handling down sentence said: Such unscrupulous acts do in my view stink in the nostrils of justice; above all society does look at such offences with abhorrence 57. There was found to be no misdirection in the use of this purple prose by the reviewing Judge. Similarly, in a case involving the theft of a computer from the offices of GALZ, in handling down sentence, the magistrate made various disparaging and judicially irrelevant remarks about GALZ, the complainant in the case, and appeared more concerned with the fact that the thief had been at the GALZ’s offices than the theft itself58. Like the Jews in Nazi Germany, gays have been accused of preying upon and abusing minors. Even the Law Development Commission has not been immune to this kind of vilification. When tangentially59 considering the decriminalisation of consensual sodomy, the Commission made no attempt to solicit the views of the gay community, but simply noted that the present law was necessary to protect minors. This is despite the fact that heterosexuals predominantly perpetrate child sexual abuse, and no legal prohibitions are placed on consensual sex between heterosexual adults. The Law Development Commission paid no regard to the requirement of proportionality in its recommendation, that is, that the present law includes consenting adults in its ambit and is thus violates human rights by being broader than necessary to attain any legitimate interest in protecting minors60. The criteria then for recognition of sexual orientation as a category and one which requires specific protection are obviously present. One point remains to be dealt with in this section, and that is whether the requirement of specific protection is not met in a prohibition of discrimination on the basis of “sex” or “gender”. The suggestion would then be that if the discrimination clause includes a prohibition of the basis of “sex” or “gender” there will be no need for a specific mention of “sexual orientation” as it is included obliquely in this category. Sex Orientation and Sex-discrimination There are strong grounds supporting the argument that a prohibition of discrimination on the basis of “sex” or “gender” includes a prohibition of discrimination on the basis of sexual orientation61. The arguments that this is so range from the obvious to the more subtle. Only the core of these arguments are mentioned here. At an obvious and legalistic level, prohibitions on same-sex are clearly discriminatory on the basis of “sex”. A woman may 55 see for example R v B 1969 (2) RLR 212 at 213 and cf the examples given in Cameron op. cit. at p. 457 esp. n 55 56 1991(2) ZLR 47 (HC) 57 at p. 50 58 The Herald, 27th January, 1999 59 The Commission’s main task in the report in question was to consider the issue of paedophilia. 60 Law Development Commission Report No 63 December, 1997 at p 18. 61 See generally Heinze op cit p 216 et seq.