Sun | Jul 22, 2018

Editorial | Jamaica next battlefront against gay discrimination

Published:Tuesday | April 17, 2018 | 12:00 AM

Fifteen months ago when Caleb Orozco succeeded in his challenge against Belize's buggery law, we hoped that it was the start of "a forceful headwind" that would blow away from elsewhere in the Caribbean these antiquated, fire-and-brimstone laws that are offensive to modern concepts of individual rights and freedoms guaranteed by the region's constitutions.

We can't yet claim that the unstoppable momentum for which we wished is on its way, but are happy that Davindra Rampersad, a judge of Trinidad and Tobago's Supreme Court, has struck another important blow in the cause of human dignity and in the protection of those rights.

Last week, Justice Rampersad ruled in a case brought by Jason Jones, a Trinidadian of dual nationality, that Section 13 of Trinidad and Tobago's Sexual Offences Act, under which persons, whether men or women, could be jailed for 25 years, was unconstitutional.

Justice Rampersad held that buggery, as well as the offence of "serious indecency", could not be reasonably applied to acts between consenting adults, for they impinged on the right of citizens to privacy, including of family life, as well as their right to freedom from discrimination based on race, colour, gender, and sex.

"To deny a perceived minority the right to humanity and dignity" on the basis of sexual orientation, the judge further argued, would be to perpetuate a kind of thinking that made possible apartheid in South Africa and Hitler's Holocaust. Indeed, it would!

It was, by and large, the same unassailable logic that Belize's chief justice, Kenneth Benjamin, brought to the Orozco case in his 2016 ruling against a voyeuristic state that found its way into people's bedrooms, in contravention of their right to be free of "arbitrary or unlawful interference with his privacy, family (and) home".

Notably, the Belize government didn't appeal the ruling and, happily, the country's Roman Catholic Church, or elements thereof, the last group that intended to challenge Justice Benjamin's findings, dropped their challenge. We understand that governments, even when ministers appreciate the illogic and absurdity of existing sodomy laws, may feel compelled to satisfy the vengeful Old Testament homophobic bloodlust of the society's majority. But the truest test of a democracy is its capacity to respect and defend the rights of the minority and those who are different. In that regard, we urge the Trinidad and Tobago government from an appeal in this matter.

 

INDIVIDUAL FREEDOMS

 

The next legal front upon which this pushback against trampling individual freedoms will be fought is Jamaica, where another openly gay man, Maurice Tomlinson, has challenged Section 76 of Jamaica's Offences Against the Person Act, which makes illegal the "abominable crime of buggery". We expect the Jamaican court to apply the same logic, with similar outcomes, as the courts in Belize City and Port-of-Spain.

It will perhaps be argued that the savings clause in Jamaica's Constitution, which protects some colonial-era laws, insulates Section 76. But more than half a century after Independence, it would defeat the notion of nationhood, as well as intellect and logic, if the Constitution were to be interpreted in a fashion as to refuse fundamental human rights to some of our citizens to satisfy an archaic index of morality.

In the event it is argued that the law - even as it derogates from constitutional rights and freedoms - stands in preservation of public interest, there is little doubt that the discrimination and stigma it helps to perpetuate would drive gay men to more, rather than less, unhealthy sexual behaviour.