Browsing by Author "Kreuser, Charlene"
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- ItemDeveloping the right to education in the context of regional African human rights law : protecting children with non-heteronormative sexual orientations, non-binary gender identities or gender expressions(Stellenbosch : Stellenbosch University, 2021-03) Kreuser, Charlene; Rudman, Annika; Stellenbosch University. Faculty of Law. Dept. of Public Law.ENGLISH ABSTRACT: At the centre of this dissertation is the denial of a fundamental right based on personal attributes. This denial is due to preconceptions regarding what people should be, the behaviours they should adopt, and the romantic relationships that they should form. The question that the dissertation addresses is part of a larger issue of how heteronormative conceptions of sexual orientation, gender identities and gender expression shape the law and its institutions, excluding persons who do not fit this conceptual approach. The right to education is guaranteed under international and regional human rights law. It is key to promoting the full and harmonious development of children into adults who can contribute to the development of their communities. Despite this, learners with non-heteronormative sexual orientations and non-binary gender identities or gender expressions(“SOGIE”) face discrimination and marginalisation in the school environment, preventing them from fully enjoying this right. On the African continent, two factors exacerbate the discrimination experienced by these learners. Firstly, the perception that non-heteronormative SOGIE are un-African. Secondly, non-heteronormative SOGIE are not explicitly listed as prohibited grounds of discrimination under the African Charter on Human and Peoples’ Rights(“ACHPR”), the African Charter on the Rights and Welfare of the Child (“ACRWC”), and the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (“Maputo Protocol”). Against this backdrop, this dissertation explores the perception that non-heteronormative SOGIE are un-African, and utilises queer theory and queer legal theory as tools to assist in unpacking and re-thinking heteronormativity as site of violence. This dissertation further utilises a teleological approach to the interpretation of treaties to develop the right to education of children with non-heteronormative SOGIE under the ACHPR, the ACRWC, and the Maputo Protocol through the lens of the rights to human dignity, non-discrimination, equal protection of the law, and the principle of the best interests of the child. In this regard, guidance is drawn from the interpretation of these rights by the international, European, and inter-American human rights bodies. Although the current interpretation of rights to human dignity, non-discrimination, equal protection of the law, and the best interests of the child under the African human rights system does not provide adequate protection to children with non-heteronormative SOGIE in education, it is shown that these rights can be purposefully interpreted to provide a framework for the protection of learners with non-heteronormative SOGIE.