Wed | Aug 23, 2017

The right to discriminate

Published:Friday | April 8, 2011 | 4:00 AM

There was a last-ditch effort, in the Senate, by some to add to the Charter of Rights a clause which would make discrimination on the basis of sexual orientation and language unconstitutional. Think it through with me. Let's begin with language.

I agree that in a court of law, persons in the dock should be able to hear the evidence against them in a language they can understand. It would be a travesty of justice for a Jamaican to be on trial in Jamaica and not be able to understand what is going on because the proceedings were conducted in Jamaican Creole, with which he was not fully familiar, or in standard English, for that matter. That is one thing.

But if two persons appeared at an interview for a teaching job, say to teach chemistry, and both were equally proficient in chemistry, but one was not very proficient in standard English, if our Constitution contained a clause preventing discrimination on the grounds of language, I would be prevented from preferring the speaker of better English for the post (for that reason), and I would be open to prosecution and a lawsuit on a charge of discrimination if I did so. What a non-discrimination clause on the grounds of language means is that all languages are put on equal par, and no language is considered better than another for any purpose. Possibly, a Creole speaker would be able to sue the manufacturers of canned mackerel or grapefruit juice if the labelling were solely in standard English; non-discrimination would mean bilingual labelling.

If the intention is to guarantee justice in the courtroom, then make it a requirement for court proceedings to take place in the language of the accused person, or for an interpreter to be provided; but it is overkill to enshrine in the Constitution a right to non-discrimination on the grounds of language to achieve judicial equity for Jamaican Creole speakers who are not proficient in standard English - a problem caused by the failure of the education system. If the intention is to have Jamaica be declared bilingual - with two official languages, and everything done bilingually - that is quite another matter; all application forms would have to be in both languages (like immigration and customs forms), and schools would have to have two classes in every subject (like chemistry), one in English and one in Jamaican Creole. Think it through.

no support for gay clause

The same goes for sexual orientation. I do not support including in the Charter of Rights a clause prohibiting discrimination on the grounds of sexual orientation, because it would prevent anyone from refusing a job to someone because he or she is gay. The Church could be hauled before the courts if it refuses to admit gays into the clergy, and schools could be forced to hire openly homosexual men or women as guidance counsellors.

I do not believe that two consenting adults, of whatever gender, should be criminalised for having sexual intercourse with each other in the privacy of their homes. Personally, I do not think that homosexual relations are wholesome, but that does not mean that gays should be dragged out of their homes and beaten, or brought before the courts charged with inserting their body parts into inappropriate places. I believe that hate crimes against lesbians, all-sexuals and gays should be criminalised, and that persons guilty of what has come to be called 'homophobia' (that word is of doubtful etymology) should be required to undergo counselling and treatment for personality disorder.

But I do not want the impression to be given - especially to young people not yet self-actualised, who are still developing a consciousness of themselves and their sexual identity - that homosexuality and heterosexuality are equally acceptable 'alternative lifestyles'. Putting a clause into the Jamaican Constitution guaranteeing non-discrimination on the grounds of sexual orientation will force the police force, the military and the correctional services to hire lesbians, all-sexuals and gays, possibly using a policy of affirmative action.

A ban on discrimination on the grounds of sexual orientation will criminalise any person or organisation which chooses or hires heterosexuals in preference to persons who make out with animals (all-sexuals). We can decriminalise homosexuality and stigmatise homophobia without making the lesbian, all-sexual and gay lifestyle the norm.

Modernist, neoliberal people reject even the idea of having norms and values - and anything goes. They are amoral, rather than immoral. Let us have a robust debate about what moral principles we wish to encourage in Jamaica, but let us not abandon the concept of right and wrong altogether.

Peter Espeut is a sociologist and a Roman Catholic deacon. Email feedback to columns@gleanerjm.com.