Affirmative action for women or discrimination against poor men?

So why can’t the government provide women with pensions from age 60 and men only from age 65. Is this not a legitimate form of affirmative action sanctioned by section 9(2) of the Constitution?

The Pretoria High Court heard yesterday that the Social Assistance Act which provide for women to start receiving pensions at age 60, but men only at age 65, discriminated against poor men. People who qualify for old age pensions are by definition poor – whether they are male or female, so the argument is that this act discriminates against men on the basis of their sex and their economic status.

The state argues that it is appropriate to treat men and women differently when dishing out pensions in order to correct past injustice. This is because women:

share a combination of characteristics that makes them more vulnerable to poverty than men. The age differentiation recognises this susceptibility and is aimed at eradicating the structural and systematic causes of women’s poverty.

Of course section 27 of the Constitutions states that everyone has the right of access to “social security, including, if they are unable to support themselves and their dependents, appropriate social assistance”, but also states that this is subject to the availability of resources.

In the Khosa case the Constitutional Court found that the provision in the Social Assistance Act that prevented permanent residence who are not South African citizens from accessing old age pensions contravened the equality guarantee, read with section 27 of the Constitution and ordered the State to extend pensions to permanent residence – even though it might cost anything between R250-R650 million.

Given this judgment, it might appear that the men in this case should have an excellent chance of winning their case. But I am not hundred percent sure that they will. The cost involved to provide all deserving men with pensions from age 60 would be around R2.7 billion, a sizable amount in anyone’s book.

Will the Court order the state to take on such a huge extra financial burden or will it argue that the resources just are not available to do so? I am not so sure it will be so bold and at the same time it will be extremely reluctant to take away the benefit now given to women between the ages of 60 and 65 because that would look like punishing the women.

Moreover, if this is presented as an affirmative action measure to assist women who have been previously discriminated against, then the state will have a better chance of justifying the different treatment because it is quite easy to satisfy the test for affirmative action measures. All the state will have to show is that the measures are targeting a disadvantaged group, are reasonably capable of addressing past discrimination and will, in the long term help to achieve true equality.

The interesting issue here on which the case may well turn, is that the real suffering here is not based on the sex of those complaining, but on the basis of their economic status. They suffer because they are poor men who have no other way of supporting themselves. But economic status is not one of the prohibited grounds of discrimination (like, race, sex and sexual orientation) explicitly listed in the Constitution. The Court can find that poverty is a status sufficiently similar to those grounds explicitly listed, and that it could therefore form the basis for a claim of discrimination.

But this would be a bold thing to do in a capitalist society in which the government is following neo-liberal economic policies because many government policies in effect discriminate against the poor and would then become constitutionally suspect.

The government lawyers appearing before the Constitutional Court are often badly prepared and do not always present cogent and rational reasons for the government policies. If this was the case here, the men still have a chance to win, but I would not be particularly confident if I was them.