AZ EGY BÁN GYA HOW TO PUT EQUALITY INTO PRACTICE? - MEK

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AZ EGY BÁN GYA HOW TO PUT EQUALITY INTO PRACTICE? - MEK

JUDIT TAKÁCS: How to put equality into practice?decided a case on joint adoption by same-sex couples. It was a situation oftwo women, where one of them could have adopted on her own, and herpartner would have had no rights. But they didn’t want to do it that way.They said we should have the same right as a married couple to adoptjointly. They went up to the Constitutional Court and they won, and theCourt decided it on both those grounds, because the South AfricanConstitution has a section that refers to the rights of the child and anothersection says no discrimination based on sexual orientation and they citeboth and that is the way it should be analysed. (R. W.)The LGBT legal emancipation project has not been completedeven in Europe. There are a lot of countries in the world where the ideais not accepted that people cannot be discriminated just because theywant to lead a different lifestyle or want to live with different partnersthan the majority, and LGBT rights are seen as special privileges. Legalemancipation of LGBT people can be defined as a processcharacterised by criminal law reform – i.e. elimination of discriminativeaspects of penal codes – as a starting point, leading to antidiscriminationprotection and promotion of equality:There are cases where the law, specially the criminal law activelydiscriminates. For example, you could have a law saying no lesbians andgays in the armed forces. You can get this kind of thing. But if youeliminate those that is not enough at all, because you have both publicofficials and private parties who can discriminate without any legislationbeing involved, so I would tend to call that more a shift from criminal lawreform to anti-discrimination protection and that usually involvesprohibitions that apply to all of the public sector and certain parts of theprivate sector. That is where you get this question of which fields arecovered: employment, housing, education, services and which exceptionsare made, because you actually cannot have a blanket prohibition ofdiscrimination in the private sector. There are areas in the private sectorwhere freedom to discriminate has to be respected: for example,decisions about who your friends are, whom you invite to your parties.Some religious institutions, you may argue, need their own little spacewhere they can do what they want. That is why it gets very technical,because you just cannot say across the board. So, I would see it as a shiftfrom criminal law reform to anti-discrimination protection. (R. W.)Anti-discrimination protection can be analysed at an individuallevel, when the focus is on the protection of individuals, and at arelational level, when the focus of protection is the individuals’relationships with other partners such as partners or children:82

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