Gary Spaulding, Senior Gleaner Writer
The leadership of the local lesbian, gay, bisexual and transgender (LGBT) community has charged that its members have been intentionally squeezed out of Chapter Three of the Constitution, titled the Charter of Fundamental Rights and Freedoms.
According to Brian-Paul Welsh, the term 'sexual orientation' was intentionally left out of the guaranteed protected categories of the charter, which was passed in May 2011, rendering members of the LGBT community 'aliens' of the Jamaican Constitution.
The charter specifies that every Jamaican enjoys the right to freedom from discrimination on the ground of being male or female, race, place of origin, social class, colour, religion, or political opinions.
However, it makes no statement about sexual orientation and Welsh, the regional coordinator at the Caribbean Forum for the Liberation and Acceptance of Genders and Sexuality, told a Gleaner Editors' Forum last week that the provision is both incomplete and not adequately all-encompassing to protect members of the LGBT community.
The law student, who also serves as advocate and community organisation officer at the Jamaica Forum of Lesbian, All-Sexuals and Gays (J-FLAG), charged that participants at a joint select committee that made recommendations on the new charter manipulated the process to stifle the rights of the LGBT community.
Welsh charged that the refusal to include some categories of persons to the charter was part of a conspiracy by groups, such as the Lawyers Christian Fellowship.
"The Lawyers Christian Fellowship and others took over the joint select committee to ensure that gay people were excluded," charged Welsh.
He argued that an entire day's debate was devoted to the exclusion of sexual orientation during the discussions by the parliamentary committee.
"The wording was very deliberate to exclude gay people, and in doing so they excluded the disabled, elderly people, and persons afflicted with HIV/AIDS because of anti-gay animosity."
While not commenting on the claim of "anti-gay animosity", attorney-at-law Bert Samuels agrees that the charter collides with some of the main objectives of the gay community.
Samuels noted that the law makes it clear that: "Nothing contained in or done under the authority of any law in force immediately before the commencement of the charter ... relating to; (a) sexual offences; (b) obscene publications; or (c) offences regarding the life of the unborn, shall be held to be inconsistent with or in contravention of the provisions of this chapter."
"On the question of same-sex marriages, Section 18 of the charter makes it abundantly clear that same-sex marriages are not recognised under Jamaican law and there can be no constitutional challenge, where a law discriminates against same-sex unions," added Samuels.
But while the local gay community is not even contemplating a demand for same-sex marriages, Welsh contended that the arguments advanced to support the retention of the buggery law were based on so-called moral basis.
"The buggery law, as it now reads, applies to men, women and animals who engage in anal intercourse," said Welsh.
"However, in practice, overwhelmingly, gay men are victimised by this law because it criminalises the private consensual acts of adults within the confines of their homes."
Within this context, Welsh said more often that not, it is gay men who are disproportionately affected by the provisions of this law, with the Constitution failing to provide any protection to this group.
"Not just LGBT people, but many others have been excluded from the provision. It is not exhaustive, it is incomplete; and I don't know if there is any room for revision," argued Welsh, who was supported by Susan Goffe, chairperson of the local human-rights organisation Jamaican for Justice.
"There was not a desire to specify all of the different groups," argued Goffe.
She suggested that if the phrase "or any other status" were applied to the Charter or Rights, it would then protect members of the LBGT community from discrimination.
"So that you would not have been able to discriminate on the basis of race religion or any other status," added Goffe.