Sat | Aug 19, 2017

Letter of the Day | Equality before the law to LGBT Jamaicans

Published:Thursday | September 8, 2016 | 9:00 AM

The EDITOR, Sir:

In the push for equal rights for LGBT persons worldwide, there has been a fixation on marriage equality. The assumption is that once same-sex couples can have their marriages recognised, then they will experience 'true equality'. Not enough of the conversation is about the impact of stigma and discrimination on the lives of LGBT persons, especially poor LGBT persons of colour. This sub-group of LGBT persons are at particular risk of displacement and denial of services. And yet, we fight over the freedom to marry.

Even within our local Jamaican context, while the majority of local activists are not focused on marriage equality, there are those who deem it the final resting place of their advocacy. We perhaps should investigate whether or not LGBT persons truly need marriage to have their rights protected. In many pieces of family law legislation, like the Property (Rights of Spouses) Act, the Maintenance Act and the Intestate's Estate and Property Charges Act, unmarried heterosexual couples have been given similar protections which have been accorded to married persons.

An unmarried person who has cohabited with a person of the opposite sex for five years is able to claim an interest in the family home, seek maintenance where needed, and claim an interest in property in the event of their partner dying without a will. These pieces of legislation exclude persons in same-sex unions who are cohabiting with their partners in the same way. This exclusion is supported by section 18 of the Constitution which prevents the recognition of same-sex unions, married or otherwise.

The truth is that while there are laws outside of family law legislation which give benefits exclusively to marriage, these laws are for the most part inconsequential to the day-to-day private lives of Jamaicans in same-sex unions.

 

STATE OBLIGATIO

 

For most Jamaicans in same-sex unions, the recognition of their unmarried cohabitation - similar to what has been done for heterosexual unions - would suffice in providing them equal protection of the law. In fact, the international human rights law case of Young vs Australia indicates that the obligation of the state under the International Covenant on Civil and Political Rights which Jamaica has ratified is to equally recognise unmarried unions rather than legislate marriage equality. This equal recognition of unmarried unions would go a far way in protecting LGBT persons while easing the tension of religious persons who fear being forced to conduct same-sex marriages.

Civil Union Legislation or amending the different family law legislation would be the appropriate legislative move to provide equality before the law to LGBT Jamaicans which they are guaranteed under section 13(3)(g) of the Constitution. However, before this can be done, section 18 of the Constitution needs to be amended to remove the prohibition on recognising unmarried same-sex unions. If we are interested in the protection of LGBT persons more than the mere symbolism of marriage, that is place to direct our advocacy.

Glenroy Murray LLB (Hons)

Policy & Legal Affairs, Equality for

All Foundation Policy Officer,

WE-Change