In President of the Republic of South Africa and Another v Hugo (1997), the Constitutional Court of South Africa decided that releasing mothers, but not fathers, from prison is legal under South Africa’s constitutional commitment to sex equality. In 1997, the Constitutional Court consisted of nine male judges and two female judges. That’s a ratio of 4.5 male judges to female judges. Prisoners in South Africa at this time numbered about thirty-eight men in prison per woman in prison.^

Within the Constitutional Court, seven male judges and two female judges supported the majority opinion upholding the preferential release of female prisoners even in circumstances of high sex inequality in prisoner numbers. All these judges, with the exception of one female judge, supported a concurring judgment that generalizations about women’s burdens of child-rearing cannot legally support depriving women of benefits, but do support preferentially releasing women from prison.^ The female judge who did not join in the concurring judgment noted:

The Presidential Act does not recognize the equal worth of fathers who are actively involved in nurturing and caring for their young children, {The Act has the effect of} treating them as less capable parents on the mere basis that they are fathers and not mothers.^

Nonetheless, this judge, mistakenly reasoning that “the basic question put to us is whether only the women should have been released, or no one released,” concurred in finding the Presidential Act to be valid under the Constitution.

Only one male judge out of eleven Constitutional Court judges found inconsistent with South Africa’s constitutional commitment to sex equality directly discriminating against men in releasing prisoners. Two judges, both male, did not find such sex discrimination to be constitutional. One of those judges dodged the substantive issue by setting aside the lower court’s finding of invalidity, but not issuing a judgment of validity or invalidity. The other judge found the sex discrimination unconstitutional. Perhaps sensing his vulnerability, that male judge, alone and socially vulnerable, began his opinion with the statement: “This is a very hard case indeed.”^ The vastly disproportionate imprisonment of men undoubtedly is one of the most difficult cases for public deliberation. That difficulty needs to be understood better.