Gay Rights in the Caribbean: We Have Not Because We Ask Not
In 2006, the Court of Appeal of Trinidad and Tobago ruled that sexual orientation should be a protected ground under the country’s Equal Opportunity Act. The decision, Suratt, Kenneth Ors v The Attorney General of Trinidad and Tobago, was written by the current Chief Justice, Ivor Archie. Although the ruling was later overturned by the UK based Privy Council, the judgment certainly points to a very liberal way of thinking by the Trinidadian bench on the issue of gay rights.
Earlier this year, the Chief Justice of the Bahamas indicated that he fully expects the issue of marriage equality to come before him, hinting that there are possible gaps in that country’s marriage law. These gaps could be used to protect same-gender unions. It is important to note that the Bahamas is the only independent Caribbean Commonwealth country to have abolished the anti-sodomy law. This change occurred without court action, but that situation is quite likely very unique within the region. The bi-partisan political will to repeal anti-gay laws is simply not evident in the remaining countries which retain those statutes imposed during the period of British colonization.
On Sunday October 6, a Trinidadian newspaper reported that the country’s former Chief Justice said that gay unions are fine. According to the learned gentleman:
"Some people might find the idea of two men living together for their entire lives repugnant. Some people might not. I personally do not find it repugnant. If a man wants to do that with another man that is their business. That is the nature of love, which does not offend. Such a love does not hurt anyone.” This is an amazing reversal for the Justice who in 2002 freed the killer of a gay man on the ground that the deceased had provoked his own death by making homosexual advances to the accused.
It is clear that while many Caribbean politicians are struggling with supporting the human rights of LGBT citizens because of the potential of lost votes in our small close-knit societies, the regional judiciary is more enlightened. I have had the privilege of speaking with many of these judges and even participated in a UNDP sponsored judicial training exercise in Jamaica. This session exposed jurists to how persons vulnerable to HIV interact with the justice system. While some judges still reflected their society’s cultural biases against homosexuality, many were willing to accept at least the fundamental right to privacy for all citizens, regardless of their sexual orientation.
In private conversations, many Caribbean politicians have indicated that they would prefer the courts to settle the matter of human rights for LGBT, as that would provide them with political cover. The Prime Minister of St. Vincent and the Grenadines, a lawyer, went so far as to say recently that this is an issue politicians should not lead on and which should be left to civil society to sort out. This is an amazing abdication of responsibility, but I suspect he is simply expressing what most regional leaders are thinking.
While there is no claim that legal challenges will immediately end Caribbean homophobia, they do provide a space for a rational dialogue about LGBT rights to take place. Evidence can be presented in court that point to the immutability of homosexuality, as well as the disastrous social, economic and health impacts of homophobia on national and regional development.
That dialogue creates greater understanding and undermines anti-gay myths being spread by religious fundamentalists across the region. Many of these fundamentalists are supported by losers of the North American culture wars who are busy exporting their bigotry to the Caribbean and Africa.
Challenging and changing homophobic laws will also change Caribbean society. There is overwhelming proof that unchallenged anti-gay statutes provide license for homophobia and inhibit advocacy in fundamental ways. For example, influential leaders are hesitant to support the right to what is an illegal activity, private consenting adult same-gender intimacy, even though they possess evidence that criminalizing such love harms the public good.
AIDS-Free World has embarked on and supports a series of ground-breaking litigation across the Caribbean to eliminate anti-gay laws. These include challenges to the Belizean and Jamaican anti-sodomy laws as well litigating against the homophobic immigration acts of Belize and Trinidad and Tobago which ban gays from even visiting. These cases were launched because we believe that those laws serve to support stigma and discrimination that drives MSM across the region underground, away from effective HIV prevention, treatment, care and support interventions. We also have evidence that these laws support a climate of homophobia which forces MSM into sham heterosexual relationships, allowing HIV to travel between the 2 populations. This creates and sustains a public health crisis that contributes to the Caribbean having the second highest HIV prevalence rate worldwide and Jamaica having the highest HIV prevalence rate among MSM globally.
Litigation to save lives may well be our mantra in the Caribbean. The region is facing a drastic reduction in financial support to tackle its HIV epidemic and in 2014 Jamaica will lose critical Global Fund backing for its HIV response. Therefore, radically new approaches have to be taken and the courts offer the best chance of success to create the culture change needed to reverse the regional HIV epidemic among vulnerable groups such as MSM.