Why Laws Matter: the Robert Carr Memorial Lecture
By Maurice Tomlinson
July 21, 2012
On July 21, 2012, Maurice Tomlinson, AIDS-Free World's legal advisor on marginalized groups, delivered the first Robert Carr Memorial Lecture at the MSMGF Pre-Conference to the XIX International AIDS Conference in Washington, D.C.
Dr. Robert Carr was a mentor to many. He was also my mentor, and I miss him. I couldn’t cry when I heard of his sudden passing and for some time after I was firmly gripped by Kübler-Ross’s stages of grief, not just for the loss of a personal friend, mentor, and guide, but also for the several movements he so passionately championed. In fact, I was at the airport in Montego Bay waiting for a flight to visit my husband in Toronto when I received the text message announcing Robert’s death, and a trip that should have involved a joyful reunion was instead marred with anxious foreboding. Toronto was where I had last seen Robert, as he had relocated to the city to be the Director of Advocacy for the International Council of AIDS Service Organizations. He had managed to squeeze in a lunch meeting with myself, the co-Directors of my organization, AIDS-Free World, and the Executive Director of ICASO; however, Robert left before lunch was over, as another urgent appointment needed his attention. But he left us to carry-on, strategizing how our organizations could collaborate on achieving a more effective HIV and AIDS response in Jamaica and the Caribbean by tackling homophobia. That last meeting and Robert’s premature departure are particularly poignant because, as with his unexpected death, he brought together individuals to take on formidable odds, but he wouldn’t stay to see the result of this collaboration. But, somehow, I know he trusted us to do the right thing in his absence.
Undoubtedly, Robert’s eloquence, diplomacy, ability to synthesize vast amounts of data, impeccable credentials, and refusal to be daunted gave him access and legitimacy as an advocate that few could match and which will be sorely missed. He successfully made conservative Caribbean politicians and populations grapple with the uncomfortable but still pertinent truth that recognizing the full human rights of MSM is critical to effectively ending the regional HIV pandemic. With HIV prevalence rates ranging from 6.1% in the Dominican Republic to the disastrously high figure of 32.9% among Jamaican MSM, there is no way MSM can be ignored in any national HIV response. Robert achieved the monumental feat of getting often homophobic politicians and policy makers to face up to this sobering reality through his innumerable conference presentations, tireless writings and collaborations, as well as his almost magical personal interactions which validated and vaunted the work of human rights and HIV and AIDS activists across the world. No engagement was too minor for him on his quest to educate about and eradicate HIV and AIDS. I remember when, at very short notice, he consented to deliver a guest lecture for me on the impact of HIV on development to a set of skeptical students I taught in Jamaica. Robert’s presentation was so polished and impressive that I was embarrassed by the level of work he had put in. The students were completely blown away and I feared returning to teach them the following week as Robert had so dazzled them with his PowerPoint (a tool he loved and deftly used but one I had not yet mastered)! I feel much the same way today delivering a lecture named after this brilliant man who is possibly the most knowledgeable person on the intersectionality between HIV and homophobia that I have ever encountered.
Needless to say however, when I was notified of my selection to deliver this first Robert Carr memorial lecture at this incredible forum he co-created 6 years ago, there was no way I could refuse to try and honor Robert in some small way.
So even though I refused for days to accept Robert’s mortality, and still do, and have yet been able to properly mourn him, I stand before you today to explain how his life and legacy have been indispensable in helping me move from “Stigma to Strength” and to share some of the strategies for an effective HIV response among men who have sex with men in a changing AIDS landscape in my region of the world. I am sure most if not all of us could make similar presentations. Such was the measure, depth, breath, wisdom, accessibility of this man that touched all our lives so intimately but never, never made us feel like just a face in the crowd. He scolded sternly, forgot my mistakes quickly, and encouraged immensely. And when I considered how much his life had impacted me and my advocacy I dreaded going on. And somehow I, we all, did. Because that is what Robert would have wanted.
He would also want us to never, never take for granted the huge strides we have made and the many, many obstacles we have yet to overcome. Each of us in our own way working for sexual rights and the most basic of rights, the right to access health care in an unbiased, non-discriminatory fashion.
Robert was an ardent internationalist who believed in the universality of human rights. He was also a committed feminist who passionately argued for an end to male dominance of positions of power. These two interlinked passions were directly related to his desire to end all forms of marginalization, which provide safe harbor for disease.
“The Robert Carr Doctrine” developed by MSMGF succinctly captures Robert’s views, and I urge you all to acquaint yourself with them. In summary, the doctrine makes three broad claims and one recommendation, which I wholeheartedly endorse:
RE-THINK the problem: The HIV & AIDS epidemic is a byproduct of social inequity.
The HIV epidemic has taken its heaviest toll on socially, financially, politically, and legally marginalized communities:
• Gay men and other men who have sex men (MSM)
• Sex workers
• People who use drugs
• Transgender people
And permit me to add to this list: women.
This epidemiological fact is the biological manifestation of social fault lines. Gay men/MSM, people who use drugs, sex workers, transgender people (and also women) are legally marginalized, socially stigmatized, discriminated against, and are commonly the targets of brutal violence worldwide.
RE-STRUCTURE the response: HIV is not just a public health issue.
The current response to the epidemic is underpinned by the faulty assumption that HIV is solely a public health issue. Efforts to address the epidemic are therefore centered on a narrow range of actors and strategies. In fact, the epidemic is a symptom of underlying societal inequities and injustices.
RECLAIM the movement: HIV is a human rights issue – we all have a “right to be.”
All human beings, by virtue of their humanity, are born equal in dignity and in rights. Yet affirmation of the human rights of gay men/MSM, people who use drugs, transgender people (as well as the full sexual and reproductive rights of women) has provoked denials, excuses, even vitriolic statements and combative legislative efforts by governments around the world.
The end of the HIV epidemic therefore lies with the COMPREHENSIVENESS of our strategies. Interventions, programs and services are needed at the biological, behavioral, inter-personal, familial, community, social, cultural AND legal levels.”
The changing HIV and AIDS landscape has been said to imply an assessment of the socioeconomic impact of the epidemic, reaching the most vulnerable groups, the importance of using available money efficiently, and the financial sustainability of HIV and AIDS interventions in a complex donor environment.
That said, I will not bore you with statistics about how many innocents have perished or been reduced to experiencing a needlessly compromised quality of life because of abject failure of leadership on the part of governments to act, that is, until crisis proportions had been reached. I will also not get into how economies have suffered because of the loss of talent, investment and development opportunities when our elected officials forgot that their role is to serve all humanity, not just narrow-minded bigots whose sense of compassion view death and disease as just punishment from a righteous deity. Neither will I dwell on the despicable dereliction of duty by multinational organizations that ostensibly exist to curb the excesses of humankind’s predilection to prey on the weak and vulnerable in times of uncertainty.
Instead, permit me to share how my organization, AIDS-Free World, and I have been strategically responding to seemingly intractable homophobia in Jamaica, a country once viewed as the most homophobic place on earth. I hope that the remarkable changes we have seen there in a very short time may inspire those who are still struggling under repressive regimes to continue working and striving for change. Ours is a fight for equality that reaches from the ovens of Auschwitz, because, as President Obama recently reminded the world, we LGBT are truly the forgotten victims of the Nazi concentration camps. In May this year, North Carolina Pastor Worley suggested we be returned there. How humanity responds to us, how we get humanity to respond to us, will define other great human rights battles yet un-fought.
Over the next few minutes I will try to speak to what motivated AIDS-Free World to work in Jamaica, why we chose the partners we did, how we went about our work, our lessons learnt from nearly three years of engagement, some of the major accomplishment as it regards HIV and MSM that we have identified and what we deem to be work left undone. Along the way I will mention some of the challenges we experienced and how we overcame them.
Three years ago, Stephen Lewis, whom many of you may know was the UN Special Envoy for AIDS in Africa and co-founder of AIDS-Free World, visited Jamaica at the invitation of another organization Robert Carr co-founded, Caribbean Vulnerable Communities Coalition (CVC). This visit was in response to some of the most vicious homophobic rhetoric uttered by a government leader and subsequently endorsed by his Parliamentary colleagues. Prime Minister Bruce Golding, in a notorious BBC HardTalk interview said that gays would never form part of his cabinet. Soon thereafter during a Parliamentary debate, a member of Golding’s party, Ernest Smith, called for the banning of the island’s 10-year-old LGBT lobby group, J-FLAG. There is overwhelming evidence that this sort of homophobic rhetoric contributes to the vastly disproportionate HIV prevalence among Jamaican MSM, currently estimated at 32.9% as against 1.6% in the general population. Pronouncements by political leaders in small states such as Jamaica carry tremendous weight in shaping public opinion and it is common knowledge that in homophobic cultures MSM are driven underground, away from effective HIV prevention, treatment, care and support interventions.
While in Jamaica, Stephen met with senior Jamaican politicians, as he himself had also been the head of a political party in his native Canada. In language parliamentarians could understand, he explained just how disastrous such outmoded politicized homophobia was for the national response to HIV. Stephen also gave media interviews challenging the approach that was being employed to address HIV in the country, which effectively contributed to the marginalization of one of the most vulnerable populations.
When Stephen left Jamaica, AIDS-Free World made the strategic decision to seek to continue working in Jamaica. This was in order to establish a model for addressing homophobia that could be exported across the Caribbean, the region with the world’s second highest HIV prevalence, after sub-Saharan Africa. Some Caribbean countries actually rival their African counterparts in HIV prevalence among vulnerable groups such as MSM.
For several years my own LGBT and HIV activism consisted of providing volunteer support service to yet another Robert Carr influenced group, Jamaica AIDS Support for Life, where he had served as Executive Director, as well as Jamaica Forum for Lesbians All-Sexuals and Gays (J-FLAG), which he also co-founded. My involvement with JASL and J-FLAG primarily involved corporate legal work and the occasional legal opinion on particular laws that affected vulnerable groups. I also conducted a few workshops on human rights (then a minor interest of mine), but I never saw this as a long-term vocation. Funny how life throws you curve balls! When I found myself between jobs I again volunteered with JASL and J-FLAG and was asked to look at how we could judicially challenge Jamaica’s anti-sodomy law, as it was clear that legislative change was going to be nigh impossible because of the overwhelmingly politicized conservative religious culture which had developed in Jamaica thanks to the export of fundamentalist religious dogma from the US.
When I “received the brief” to challenge Jamaica’s 1864 British colonial imposed anti-sodomy law, I quickly realized that this was not going to be a simple matter. Firstly, there was going to be the very difficult matter of finding a claimant in this small, close-knit community. Such a person would have to endure inevitable intrusions into his own, as well as his family’s, privacy. There was also the possibility of serious physical and financial backlash, including the loss of employment. The second major hurdle was perhaps the most important: the anti-sodomy law appeared to be “saved” from domestic judicial review as a result of a unique constitutional clause which preserved all pre-independence legislations from being challenged in local courts. Effectively, this Savings Law Clause meant that only Parliament could change the law, even if it clearly violated any or all of the fundamental rights and freedoms we as a sovereign nation had adopted upon our independence from Britain in 1962!
Jamaica has signed numerous international human rights treaties, and one that would have been particularly helpful was the Optional Protocol to the International Covenant on Civil and Political Rights. This treaty allows for individual petitions against state parties for their failure to give effect to any of the rights found therein. In 1992, the Human Rights Committee, the body responsible for hearing these claims, had declared that a similar anti-sodomy law, in Australia, violated the treaty’s rights to privacy and non-discrimination. Sadly, Jamaica renounced this Optional Protocol, not because it feared a challenge to the anti-sodomy law, but because the country wanted to carry out expeditious executions of condemned prisoners. The last avenue available for any challenge to this archaic piece of legislation was therefore the Inter-American Commission on Human Rights (the IACHR).
Jamaica signed the American Convention on Human Rights in 1968 and acceded to the jurisdiction of the IACHR to review the country’s compliance with the treaty. The challenges that faced us bringing a petition before the IACHR were:
1) the novelty of a claim regarding this type of challenge, as the IACHR had not yet pronounced on a matter regarding same-sex intimacy, and
2) any decision of the IACHR would only result in a non-binding recommendation that would not achieve the desired effect of immediately getting the law removed.
One major benefit of an IACHR petition however is that the identity of the petitioners could be suppressed. This would provide much needed security for any potential claimant.
To overcome the non-binding nature of any positive recommendation by the IACHR, we would need to demonstrate to the Jamaican government that there was societal support for the repeal of the law. This was not going to be easy, but it was essential or any victory we achieved would be little more than an advocacy incident that could, and quite possibly would, be ignored.
As a liberation and advocacy movement, we all have opportunities to learn from each other, and I certainly drew on the experience of the Naz case in India. In that decision, where the Delhi High Court found that the maintenance of a similar British colonial era imposed anti-sodomy law served to severely curtail a national HIV response (a fact which even the Jamaican Ministry of Health acknowledged on their web site), the Delhi chief judge admitted that when the matter was first brought before the court, he knew no gay persons. Over the decade that the matter took to be heard however, he became acquainted with members of the LGBT community, and there were also at least two pride marches in India. This personal exposure allowed the judge not to rely on fear mongering (which our opponents are so adept at) but rather his own personal sense of decency and “constitutional morality” in rendering his judgment. It is truly easier to hate a concept than a person. Indeed, Rhodes scholar and Oxford-trained Jamaican psychologist Dr. Keon West (who is incidentally the son of one of Jamaica’s most vicious homophobes, Dr. Wayne West) ascribes the country’s virulent homophobia to a general ignorance about homosexuality. And so, against seemingly impossible odds, we decided to raise the profile of Jamaican LGBT in order to get Jamaicans to see the community directly being impacted by their deadly intolerance. We immediately faced opposition, such as the repeated “loss” by the police of our letter requesting permission for our first public event, a Walk for Tolerance. However, we bravely held our Walk two years ago on April 7, 2010. As originally conceived, this event would have been the first public demonstration by any LGBT group on the island but the constituency was soon broadened to include other vulnerable groups. Jamaican media sensationalized the Walk as Jamaica’s first “gay pride march,” clearly in an attempt to scare us into retreating from any such event in the future. Instead of caving, we called the media’s bluff and held at least 13 other public demonstrations, this time exclusively calling for recognition of the human rights of LGBT.
These “Stands for Tolerance,” as the other events were called, were supported by a range of human rights and HIV and AIDS groups on the island. We also engaged in an aggressive letter-writing campaign to the major Jamaican papers and participated in media interviews where we sought to educate the Jamaican population on how homophobia directly contributes to the HIV epidemic. A very successful public service announcement was also produced and aired on national television, which called for tolerance of sexual diversity as crucial to combatting HIV. Central to our strategy has always been the use of serious scientific evidence to undergird our advocacy. In this regard, we commissioned the first-ever survey on the level and drivers of Jamaican homophobia, and these findings helped to undermine the argument by some influential but incredibly naïve Jamaicans that we are not in fact a homophobic nation. The 2011 survey revealed that well over 80% of the population self-identified as homophobic and the majority of those were influenced by religious teachings, as well as songs by our musicians who have recorded well over 200 homophobic pieces.
Throughout our Jamaican advocacy, AIDS-Free World partnered with J-FLAG to develop a robust documentation process for capturing human rights violations against Jamaican LGBT. The aims of this documentation were two-fold:
1) to provide vital information to counter the still persistent myth that Jamaican LGBT are somehow engaged in an internal warfare, which accounts for all the homophobic attacks, and
2) to identify a potential claimant to challenge the anti-sodomy law.
As a corollary, documentation also assisted greatly in the preparation of shadow reports for United Nations and regional agencies that forced the Jamaican government to answer tough questions about LGBT abuses on the island when the country faced reviews in international settings such as the UN Universal Periodic Review in 2012. This international review process and the fact of our being prepared with our credible data opened the space for the government to, for the first time, actually meet with J-FLAG. As a country that is heavily dependent on tourism and international goodwill for trade and investment, it was clear that the hard government line against recognizing the human rights of gays was beginning to crack in light of all this exposure.
Another important strategic decision was to challenge sponsors of Jamaican homophobic music. This was deemed preferable to supporting a national boycott, which would have hurt the small and vulnerable LGBT community more than it was likely to help, at least in the short term. So when we heard that Coca-Cola sponsored a reggae concert at which a notorious homophobe called for the murder of gays, we immediately alerted the company, and they suspended sponsorship of music events in Jamaica. They also promised to review their sponsorship policy to prevent a repeat of such an event. I am happy to report that the new, more robust sponsorship policy is now in place. I daresay our approach of going after individuals instead of entire countries is scalable, and governments, such as the UK and the US, who are interested in combatting homophobia should focus on those directly responsible, instead of blanket aid-conditionality. Visas of homophobes can and should be revoked and their foreign assets frozen. In the meantime, aid can and should be re-directed to groups engaged in documenting, reporting, and responding to LGBT abuses. Countries in the global north also need to acknowledge the source of exported homophobia, most often themselves, and share with their colleague governments in the global south the tremendous harm such homophobia wreaked on their populations and civilizations, as well as strategies for overcoming national fear and hysteria, which drives this homophobia. Hiding behind “free speech” provisions is, to me, a shameful cop-out. When your speech incites violence against any group, your government should make you pay the price. That is what true leadership on the issue of supporting LGBT human rights abroad means to me.
Other work we supported in Jamaica was the scripting and production of innovative national and regional tolerance-themed public service announcements, as well as an excellent documentary directly linking homophobia to the spread of HIV. Further research into the level of Jamaican homophobia has also been commissioned. This is because, early this year a television poll said that 61% of Jamaicans would hold an unfavorable view of the government should they repeal the law against private, consensual, adult male same-sex intimacy. To us, this development is a tremendously positive sign if it reflects a near 20% reduction in national homophobia over last year’s findings.
In August 2011 we filed a petition before the IACHR challenging the anti-sodomy law on behalf of two Jamaican MSM who had suffered horrendous human rights violations directly relatable to the existence of this legislation. Typically, there was marked police inaction to treat with the violations perpetrated against the men by their fellow citizens, simply because, to the officers, the men were unapprehended criminals.
I must hasten to point out that our work triggered a serious ramping up of the response by our opponents, who are not afraid to twist scientific fact to suit their own agenda. Thus, when The Lancet published an article which mentioned that HIV was “out of control” among French MSM, the religious right in Jamaica found a radiographer to appear on national television to assert that since France had repealed their anti-sodomy law in the 18th century, repealing Jamaica’s anti-sodomy law would be disastrous for our HIV response! Debunked ex-gay conversion cures are also being peddled like never before in Jamaica and elsewhere in the Caribbean. Frustratingly, the response of UNAIDS to rebut this junk-science has been inadequate or non-existent, all because they are afraid to engage in the political battle that is so critical to save the lives of MSM. At the last AIDS conference Robert called this cowardly approach by international agencies and governments BS! He was never shy about identifying and standing up to the dead wood in Geneva who, to him, remain more interested in securing their UN pensions than actually getting any real work done.
The religious right has also sought, repeatedly, to make the link between homosexuality and pedophilia, despite overwhelming evidence that homosexual men are no more likely to abuse children than are heterosexuals. Quite wisely, J-FLAG has joined the call for stringent measures to be taken against abusive adults, of whatever sexual orientation.
Despite these challenges, and as a direct result of a collective and sustained level of advocacy, we have seen some remarkably positive developments in Jamaica, many of which the religious right has sought to halt and even reverse. Truly, eternal vigilance is the price of freedom. We were therefore pleasantly surprised to hear the Jamaican Prime Minister say during the end-of-year political campaign that she rejects the homophobia of her predecessor and would call for a Parliamentary conscience vote based on consultation with constituents on reviewing the country’s anti-sodomy law. While we regret that the rights of a minority to engage in their private, consensual, adult sexual activity should be the subject of a parliamentary conscience vote, we continue to work to educate Jamaicans about just how harmful retaining this law continues to be, in hopes that when the vote is called we will see a positive result. The Jamaican Prime Minister’s party also won two landslide victories in close succession despite her principled stance against homophobia. The PM herself was named among Time magazine’s 100 most influential persons, beating, among others, US Secretary of State Hilary Clinton. Her nomination for this popular vote poll directly mentioned (albeit in overblown terms) her anti-homophobia stance.
The odds that we will end Jamaican homophobia seem daunting, and I admit there are many times I get despondent. However, I firmly believe that as members of civil society we hold the power to call our countries back from the brink of hysteria and hate. Our narratives as MSM are vital in getting our fellow humans to see just how bigoted and blinded policies are hurting us and endangering public health. Just this Thursday a brave young gay Jamaican was moved to write to the notoriously homophobic Jamaican paper, the Observer, describing in detail the horrendous homophobic abuses he suffered at the hands of classmates and members of his community from as young as age 12. This was done in response to some high profile reports in this same paper which saw a UK-paid Assistant Commissioner of Police and a child advocate declaring that most, if not all, attacks against gay Jamaicans are self-inflicted. More of these stories need to be heard. As a gay man who married a woman to avoid societal disapproval after trying every gay “cure” known to humankind, I was finally able to be authentic when I left my marriage. The threat of physical and psychological harm remained real both for myself and my now ex-wife as long as we stayed together. I realize that same-sex relationship rights are still a very sensitive issue for many, and I certainly did not get married to my husband to be a poster-child for same-sex marriage. Hence, I deliberately tried to keep news of my marriage to Tom out of at least the Jamaican media for fear that it would undermine the work we were doing in Jamaica. However, when my marriage was revealed and after many death threats forced me to temporarily flee Jamaica, I also saw an amazing outpouring of sympathy from unlikely sources. One of my students even said to me that when her mother expressed disgust that I was married to a man, she simply replied, “But mom, so am I!”
If we don’t tell them, they will not know and, frankly, they will not care. I realize that the first step can seem overwhelming but as you look around the room, please know, you are not alone and the tide IS turning. I experienced an emotional roller coaster when I became an “accidental activist” fighting to rid my country of imported homophobia. But I have never regretted the journey. Like Robert, I started with very different professional aspirations. He was a doctor of English but saw a need that demanded greater attention than facilitating mastery of language in his students. He therefore turned his incredible linguistic skills to achieving much, much more for humanity. I hope to use my meager legal training to improve my island’s and region’s view of their fellow human beings. That is the legacy I want to leave. What will you do with your skills? Jack Layton, the former leader of the Opposition in Canada, where I now live with my husband Tom, said before he died, “Love is better than fear.” We can teach the world to love again, by telling our stories and refusing to be silenced.