Fri | Aug 18, 2017

Jaevion Nelson | Court bias and minority groups

Published:Thursday | July 21, 2016 | 7:00 AM

There have been a slate of human-rights cases across the region that raises concerns about how our courts treat with the rights of minority groups and the organisations that support them. In Belize, Caleb Orozco is challenging the buggery law; in Guyana, a group of four transgender persons are challenging laws which criminalise cross-dressing; and in Jamaica, there is an ongoing challenge to the buggery law.

In two of the above-mentioned cases, civil society organisations, as well as faith-based organisations, applied to intervene in the cases and give their perspectives on the matter before the courts. The courts have shown a clear bias in favour of faith-based organisations who have traditionally opposed the protection of the rights of lesbian, gay, bisexual and transgender (LGBT) persons. The dispensation of justice is slanted away from the LGBT population as, in all three cases, persons applying to intervene to support the challenges have been turned back by the courts. What the recent decision of the Supreme Court in Maurice Tomlinson v Attorney General has acknowledged is that the court is deeply concerned about public opinion rather than rules of law when coming to these decisions.

In Belize, UNIBAM - an organisation in defence of vulnerable populations - was originally an applicant in the Orozco case: they were held to have no standing. In Guyana, SASOD - an organisation advocating for sexual minorities - was an applicant in the cross-dressing case: they were also held to have no standing; and in Jamaica, the public defender was said not to have "sufficient interest" to intervene in the matter even though the office has a mandate to protect and enforce the rights of all Jamaicans. In all the cases, the courts have applied a strict approach to standing to ensure that the applicants - who are all members of the LGBT community - are left by themselves to face the giants of the Government and the Church.

In Jamaica, in particular, the bias is palpable. The Supreme Court, relying on the Civil Procedure Rules, allowed four faith-based organisations to intervene in the application by advocating for a broad interpretation of the applicable rules, but was very restrictive in their approach to the Office of the Public Defender. The result is that the applicant, a private citizen claiming that his rights are being breached, will have to face not only the Government, but four emissaries of the Church.

 

UNJUST AND DUPLICITOUS

 

It is critical that various organisations, including faith-based ones, have an opportunity to share their perspectives on issues of national importance. However, it is quite duplicitous and unjust for the court to give the Church a wide platform to share their views and, in the same breath, deny standing to those organisations that have a legitimate interest in the outcome of the case given the various communities they serve. Laws criminalising consensual sex between men and cross-dressing more directly impact the LGBT community than the Church. If church representatives are afforded the chance to have a say, how is it fair by any measure for organisations who serve the LGBT community to be excluded from this process?

Even more alarming is the concern that was placed by the Supreme Court on public opinion in deciding that the public defender would not have standing. The judge adopted the view that the public defender ought to be excluded from the case because it would "alienate a section of the society". This is not an argument based in law. It also completely ignores the role of the public defender as a guardian of the rights of all Jamaicans, regardless of sexual orientation and gender identity. What the court has done is demonstrate that it is more interested in preserving the status quo regardless of the fact that the status quo involves a denial of rights to minority groups.

Perhaps judges need to be sensitised as to the role of civil society in the democratic process and, in particular, their capacity and expertise in human-rights matters, given their closeness to vulnerable groups.

Justice must be seen to be done. In the eyes of many persons, it seems the justice system regionally is colluding with the wider majority to ensure the rights of LGBT persons are not protected. And with a ruling that says Christians who hold two conventions and a few anti-gay marches are experts on sexuality and buggery, how can we blame them?

- Jaevion Nelson is a youth development, HIV and human-rights advocate. Email feedback to columns@gleanerjm.com and jaevion@gmail.com.