Report on Persecution of Sexual Minorities in Jamaica

prepared by

Anthony Hron, Programme Director

Jamaica Forum for Lesbians, All-Sexuals* and Gays

with contributions from

Philip Dayle, Attorney-at-Law

Ian McKnight
Robert Carr, PhD.
and
Jamaica AIDS Support

May 24, 2003

P.O. Box 1152

Kingston 8
Jamaica, W.I.

*The term ‘all-sexual’ refers to persons who do not fall under the categories of gay or lesbian,
including bi-sexual, transgendered, and transsexual.
 Abstract
This report documents incidents of State persecution of sexual minorities in
Jamaica where public officials have acted with impunity to abrogate the rights of
gay and lesbian citizens. It also provides a comprehensive review of the human
rights framework in the English speaking Caribbean in regard to sexual
minorities. The final section offers suggestions for action to help alleviate these
human rights abuses.

Case Studies
The following case studies reveal the representative conditions of discrimination
against and abuse of lesbians and gay men. It should be noted that
transgendered individuals (especially men to women) maintain a very low public
profile due to the overwhelmingly negative attitudes toward them, and are
therefore not commonly subject to public scrutiny. While cases of abuse do
occur, no personal statements exist to document them.

Case 1 – Typical Conditions for Lesbians

Miss Smith (name changed for safety reasons) was labeled “dyke, or lesbo” and
several other such names that refer to lesbians in a derogatory manner by
members of her community who heard about her association with an HIV/AIDS
prevention agency. That information spread even to the very community from
which she came and resulted in much discomfort and alienation.
Please try to understand that some of this happened because of how Miss Smith
internalized and lived her identity as a lesbian. She is what Jamaicans call a
“man-royal” or “butch” which basically connotes that she is a woman who
resembles a man. Added to that she always wore trousers and pursued activities
that are traditionally ascribed to men. She showed no signs of having children
and of settling down with a male partner as is expected by community and family
members. As men made unsuccessful passes at her, they became outraged that
she did nothing to accept these invitations. This caused the hostility to build up
and manifest itself in some very uncomfortable situations. More and more, she
became a target of attack and was vulnerable. This resulted in her fleeing her
hometown to live in Kingston.

However, her suffering did not end. In one instance a co-worker inflicting a head
injury to Miss Smith because she refused to accept his overtures. Although this
was brought to the attention of her employers, it did not result in much action
being taken as most persons (inclusive of the Police) backed away from the case
because it involved “a lesbian gal”.

As if not satisfied with disrupting her work environment, someone volunteered the
information to her landlord and then to her community. As a result she had to
endure discrimination and stigma both at home/community and at work. It cannot
be underestimated the personal misery in which Miss Smith lived, forcing her to

2
seek structured and professional counseling. Her intimate relationships were
frustrated into nothingness because of the vigilance that was brought to bear on
them. There was no support from her immediate family who also found it hard to
survive the teasing from the community. Eventually, Miss Smith could endure
this constant duress and left Jamaica.

Case 2 – Typical Police Abuse of Gay Men

Two gay men, one of whom was HIV-positive, lived in a house in Meadowbrook,
a middle-class neighbourhood, and ran the house as a safe house for gay men.
At any one time there were an average of eight men taking refuge in the house.
One of the men who was seeking refuge in the house told a neighbour that there
was an HIV-positive person living in the house. About a week later, at about 2pm
in the afternoon, the house was surrounded by approximately 20 police officers
who demanded entry. At that time there were about 12 of us gay men taking
refuge in the house. When one of us opened the front door police officers began
to rush into the house with semi-automatic weapons drawn. They commanded
us to surrender our guns. The rest of the police officers followed behind and
entered the house.

An outspoken member of the group explained that no one in the house had a gun
or had committed any offence. Several of the police officers then began
accusing us of being “battymen”, and bringing “AIDS people” into the area. The
same member of the group said yes he was gay, but they had no guns and had
not done anything wrong. The police began to beat the young man, until others
of us spoke out and said we were gay as well and we had done nothing wrong.
The police officers then turned on all of us and four of the officers began beating
us about our heads and bodies while calling us “battymen” and warning us not to
cry out. Those standing around and watching also hurled hateful epithets at us
and told us we were lucky it was Meadowbrook or they would have just killed us
and dumped the bodies. They told us we deserved to die because we were
“battymen.” This continued for approximately 15 minutes.
Then the officers demanded that we gather their belongings and leave the area.
We were able to gather our clothes and shoes but were forced to leave other
valuables such as furnishings behind.

Human Rights Framework in the English Speaking Caribbean

This examination of the human rights framework in the English speaking
Caribbean comes from an unpublished, comprehensive report on the current
human rights context in Jamaica, Trinidad and Tobago, and Barbados written by
Philip Dayle, a Jamaican Attorney-at-Law, and human rights activist. Despite its
length, it is reproduced in full in order to provide a more complete picture of the

3
legal framework for the protection of human rights for sexual minorities in the
English-speaking Caribbean by comparing this local framework with international
legal precedents.

What the Law Says

The offences of buggery and gross indecency, as they are framed by the
Jamaican Offences Against the Persons Act 18641, are derived from the
English parent Act of 1861.The Act is not coy about its moral censure of male
same-sex activities. Section 76 states:

“Whosoever shall be convicted of the abominable crime of buggery,

committed either with mankind or any animal, shall be liable to be imprisoned
and kept to hard labour for a term not exceeding ten years.”

The side notes to the section refers to the offence as an “unnatural crime”. The
section is spectacular in its breadth and for the conflation of bestiality and
various permutations of anal intercourse. Buggery by virtue of the section
means ALL acts of anal intercourse and any sexual intercourse between a
human being and an animal. Anal intercourse is a crime whether it occurs in
public or private or whether force is used in its commission or not. It may be
committed between two men or a man and a woman. There is no “age of
consent”. The prohibition of anal sex observes no nuance.

The comprehensive moral disapprobation of the drafters is underscored by

the inclusion of bestiality as specie of the offence of buggery in the Jamaican
Act. The drafters saw no qualitative difference between anal sex among
human beings regardless of the context of its execution, and sex between a
human being and animals. All are deemed equally “abominable” or unnatural.

The remaining compendium of male homosexual sex engages the

disapproving hand of the law in section 79 of the Jamaica Offences against the
Person Act. This provision prohibits acts of “gross indecency”, whether public
or private, between male persons. The Act gives no assistance on the question
of what amounts to gross indecency. Archbold’s 36th edition 2 defines gross
indecency, as conduct between two men that outrages public decency. The
determination of what acts may be deemed to outrage public decency remains
fluid and subject to interpretation by the court. By and large, it has been
interpreted to mean any sexual intimacy (minus anal penetration) between
men.

1
Laws of Jamaica , Volume XIX
2
Archbold Criminal Pleadings, Evidence and Practice,36th Edition, London , Sweet & Maxwell

4
 In the hierarchy of laws, a written constitution is the supreme law of the land
in all three states3. As a bizarre gesture to affirm continued respectability in
the perceived British traditions, the architects of independence from the
British colonisers, agreed special savings law clauses in the constitution of all
three territories.4 The purpose of this clause is to measure the limits of
constitutionality on laws that existed prior to the promulgation of the new
Caribbean constitutions.5 Perversely, this for a very long time had the result of
freezing the interpretation of rights to the limits of British law received into
the Caribbean prior to independence.6 Given the scheme of constitutional
interpretation, impugning the laws against male homosexual sex under these
constitutions presents a daunting prospect.

Except for a preambulatory call for “respect for [his] private and family life”7,
no substantive “right to privacy” exists for the individual in the Constitution
of Jamaica, the right to protection against discrimination arguably exists only
for stated categories in Jamaica. No provision is made for an “other status”
that may arguably envisage categories other than the stated ones. In all the
Constitutions, the right to audience inheres in a substantive action before the
Court rather than existing as an independent right.

All three countries are parties to the International Covenant of Civil and
Political Rights (ICCPR) and the American Convention on Human Rights
(ACHR).8 Although the character, concept and structure of West Indian Bills
of Rights is derived from international instruments, the recourse to
International human rights conventions in municipal judgements have ranged
from the “decorative” to the actively interpretative.9 International Covenant
does not directly alter law except to the extent that it is incorporated into

3
Barbados,www.georgetown.edu/LatAmerPolitical/Constitutions/Barbados/barbados.html; Jamaica,
www.georgetown.edu.LatAmerPolitical/Constitutions/Jamaica/jam.html; Trinidad & Tobago,
www.georgetown.edu/LatAmerPolitical/Constitutions/Trinidad/trinidad-tobago.html
4
Barbados, s 26, Jamaica, s 26(8);Trinidad retained its saving clause even after it became a republic as per
s6
5
see Pratt v A-G for Jamaica (1993) 4 All ER 769(see p 782 h j;783 a-e )
6
see Riley v A-G of Jamaica, (1982) 3 All ER 469 ; Demerieux, M, Fundamental Rights in
Commonwealth Caribbean Constitutions, p 58
7
Barbados s 11(b), Jamaica s 13(c)
8
Ratification of ICCPR : Barbados, January 5 1973;Jamaica October 3,1975,T& T December
21,1978;Optional Protocol – Barbados, Jan 5, 1973, Jamaica October 3, 1975, T & T 1980 , see
www.unhchr.ch/pdf/report.pdf

ACHR – Jamaica , 1969, T & T , May 28, 1991

9
supra Demerieux, p109 and 114; Neville Lewis et al v A-G of Jamaica , www.privy-
council.org.uk/judicial.committee/2000/judgements/judgment.035.htm

5
 domestic law by the legislation10. Its use as an aid to interpretation could not
be asserted as robustly applied in the municipal court.

Legislative changes have been induced by state obligations under human

rights treaty bodies11. Nevertheless, the engagement with international human
rights discourse has been tumultuous. The relations of States and the human
rights bodies in relation to the death penalty has placed “human rights” in an
invidious position in the public imagination, owing to strong feelings about
the death penalty and the highly politicised tone of the debate12. This
culminated in the recent withdrawal of Jamaica and Trinidad from the
Optional Protocol of the ICCPR.13
Caribbean “culture” and Homosexuality
If the legal structure of Caribbean states present a challenge for the reception
of international human rights law, the “culture” of these societies
extravagantly reinforces its resistance in matters of homosexual orientation. In
August 1997, 16 men were killed in the prisons in Jamaica because they were
alleged to be homosexuals. This display of violent homophobia was an
expression of disgust to statements made by the Commissioner of Prisons in
Jamaica that condoms would be distributed in the prisons as part of a UN
inspired HIV prevention programme. The mere acknowledgement of male
same sex activities in the prisons by the Commissioner apparently necessitated
a bloody assertion of heterosexuality among presumably “straight” inmates. A
year later, an official inquiry in its findings held no one specifically culpable.
The official government response betrayed no sympathy towards the issue of
homosexuality or homophobic violence. 14 In the wake of the published report,
the Minister of National Security issued the assurance to the nation that there
should be “no fear that the government will pass any law to legalise
homosexuality”.15

10
Thomas and Hilaire v A-G of Trinidad & Tobago, www.privy-
council.org.uk/judicialcommittee/1999/judgments/judgment013.htm
11
Barbados changed its legislation to conform with article 6(5) of ICCPR ,
12
See Pratt & Morgan supra 10 ,p 787 j 789
13
noted in judgements of Neville Lewis v A-G of Jamaica and Thomas and Hilaire v A –G of Trinidad &
Tobago , supra n 13 and 14 respectively
14
L. Williams, “Homophobia and Gay Rights activism in Jamaica”, in Small Axe March 2000
15
“No Gay Rights for Jamaica”, Jamaica Daily Observer, 2 March,1998

6
 The discourse on homosexuality in the Caribbean is replete with assertions
that homosexuality is foreign and European.16 As Caribbean nations are
imagined, homosexuality represents the absolute oppositional forces of moral
tolerance. Caribbean nationhood is defined in contra distinction to Western
societies that are perceived to permit homosexuality with impunity. States are
imbued with the responsibility to protect the boundaries of nationhood,
through laws that proscribe sex against the order of nature.

M Jacqui Alexander argues that Caribbean States are represented as

heterosexual through their inscriptions of citizenship. Non-procreative sex
such as gay and lesbian sex are prohibited by law and are debarred from full
moral citizenship, for which there is a heterosexual imperative. The conflation
of buggery, bestiality and criminality in the law entrenches the notion that gay
sex is unnatural, while promoting heterosexuality as the only viable and self-
sustaining option for the Nation.17

Despite the origins of these laws in British Victorian concepts of order and
propriety, the black nationalist middle classes that assumed governance at the
end of colonialism, appropriated these norms with enthusiasm. In so far as the
buggery laws sought to preserve respectability, they consolidated power in the
hands of the new leaders and away from the black proletarian classes, while
simultaneously establishing the new nationalists as replacement for the white
colonial masters18. The savings law clauses of Caribbean constitutions and the
retention of buggery laws, represents what Toni Morrison argues is the
psychic debt payment for rescue from incivility and savagery in the post-
colonial experience19. The fictions of old are now propagated by Black
Nationalist men.

Representations of Caribbean societies are severe in the constructed

homogeneity. In so far as homosexuality exists, it bears the taint of perversity
and criminality in the imagined Caribbean community. The “voice” of a “gay
community” is never heard because the notion of a homosexual is bereft of
moral citizenship in Caribbean society. Where he (the male homosexual)
exists, he is hedged in by fear, either of the criminal laws or by the
homophobic violence of the society. It is in this context of muted homosexual
voices and hegemonic heterosexuality that Caribbean societies are represented

16
One letter writer to the Editor of the Daily Gleaner wrote: “Foreign legislation (laws to decriminalise
homosexuality) need not be imported along with car parts”, Gleaner On-Line,19 July 1998
(http://204.177.56.98/gleaner/19980819/letters.html)
17
M. Jacqui Alexander, “Not Just Any Body Can Be A Citizen, Sexuality and Postcoloniality in Trinidad &
Tobago and the Bahamas “,4 Feminist Review, p 6
18
ibid p 12-14
19
Toni Morrison ,Race-ing Justice, En- Gendering Power: Essays on Anita Hill, Clarence Thomas and the
Construction of Social Reality, New York Pantheon,1992: vii - xxx

7
 as overwhelmingly homophobic and extremely averse to accommodations of
rights discourse on homosexuality.

Privacy, Equality and Non- discrimination

Notions of privacy have met some success in trumping buggery statutes in
Europe and other parts of the world 20. Arguments of privacy have been a good
“entry level” strategy for gay rights activists in their campaigns against legal
proscriptions of homosexuality and particularly the decriminalisation of
buggery laws. This has perhaps satisfied officialdom because of the perceived
limitations of the normative scope of privacy, while simultaneously posting
incremental gains for the gay rights activists in areas such as
decriminalisation. The most successful use of the privacy argument has come
from the European Convention of Human Rights (ECHR) system. Though the
case law is of immense moral and some juridical persuasion, its
uninterrogated application to the Caribbean would be problematic.

The case of Dudgeon v UK21 typifies the approach of the ECHR system in a
line of discrimination cases in that system.22 Dudgeon was a 35-year-old gay
man who lived in N. Ireland. The police visited his premises on investigations
of drugs concerning a third party and seized gay literature and paraphernalia
belonging to him. In his challenge of the buggery laws of similar wording and
parentage to that of the Jamaica Act, the European Court of Human Rights
held under art 8 of the ECHR23 that the buggery laws constituted an
interference with a “most intimate part of private life”. The Court reasoned
that:

“the existence of this legislation continuously and directly affects his private
life: either he respects the law and refrains from engaging (even in private
with consenting partners) in prohibited sexual acts to which he is disposed by
reason of his sexual tendencies, or he commits such acts and thereby becomes
liable to criminal prosecution”.

20
Australia ; see Toonen v Australia later at n 46
21
(1981) 4 EHRR 149
22
Dudgeon v UK (1981) 4 EHRR 149;Norris v Ireland (1988) 13 EHRR 186; Modinos v Cyprus (1993) 16
EHRR 485
23
Article 8

1. Everyone has the right to respect for his private life and family life , his home and his correspondence

2. There shall be no interference by a public authority with the exercise of this right except such as is in
accordance with the law and is necessary in a democratic society in the interest of national security,
public safety of the economic well being of the country, for the prevention of disorder or crime, for the
protection of health, morals, or the protection of the rights and freedoms of others.

8
 Though the Court acknowledged the “legitimate aims” of the statute as the
protection of health and morals and the protection of the rights of others, it
nevertheless found no “pressing social need” to exist for the retention of the
legislation. Crucial to this conclusion was the fact that the contended
legislation had been abolished in the other parts of the UK and in most
member states of the Council of Europe, reflecting what the Court viewed as
an “increased tolerance of homosexual behaviour ”.24 The court further
applied a proportionality test and concluded that even if there were
justification for the retention of the laws, the detrimental effects of those
legislative provisions on a person of homosexual orientation like Dudgeon far
outweighed the aim pursued in the retention of the laws.

Though the arguments of proportionality are potentially of universal import,

the overall judgement is marred by the relational logic of the court’s
reasoning. In the context of the supranational system of the ECHR, the
reference to the practice in other member states is a constant motif.
Wintemute25 argues that a “European consensus” theory plagues the
jurisprudence concerning gay and lesbian issues in the ECHR system in that
decisions are not hinged wholly on independent juridical logic, but are heavily
influenced by what already constitutes the practice in other member states.
Being a court of several nations rather than a municipal Constitutional Court,
its judgements considers the best management of sensitive matters of moral
concern with some amount of political expediency.26 This informs what may
be an affirmation of a “minimum standard of European human rights”27 in
relation to gay and lesbian issues rather than a natural development of
juridical consistency.

The reference to a predominant standard of tolerance towards homosexuality

in Europe in the case of Dudgeon arguably alienates the judgement in its
applicability to the Caribbean. The use of Europe as a standard of reasonable
conduct in the circumstances is extremely problematic having regard to strong
nationalist sentiments that prevail in the Caribbean concerning this issue. A
corresponding lack of tolerance in Caribbean states may be used to evince the
intention to retain laws prohibiting buggery. In spite of the fact that the
Bahamas have decriminalised private acts of buggery among consenting adult
men, and the British Government effected decriminalisation in the British
overseas territories, it could not seriously be argued that an emerging trend of
tolerance towards homosexuality exists or is emerging in the Caribbean.

24
See par 60, Dudgeon decision
25
R Wintemute, Sexual Orientation and Human Rights, The US Constitution, the European Convention,
and the Canadian Charter, Oxford : Clarendon Press, 1995, p132 et seq
26
See P. Van Dijk, The treatment of homosexuals under the European Convention on Human Rights, in
Waalddijk and Clapham (eds), Homosexuality: A European Community issue, at 198
27
supra n 30

9
 Though it may be argued that the force of the Dudgeon judgement emanates
from the reasons concerning the injury to that “most intimate part of private
life”, the judgement itself supplements, if not bases its rationale in the context
of Europe.

The force of the privacy argument in the ECHR in decriminalising buggery

laws proved satisfactory for those purposes in Europe, as it overcame strong
social resistance of North Ireland in Dudgeon, Ireland in Norris and Cyprus in
Modinos. The notion of privacy however seemed hard pressed in the ensuing
years to incorporate the more public manifestations of private life. The case of
Lustig-Prean and Beckitt v the United Kingdom,28 (18 years after Dudgeon)
concerning the right of gay persons to serve in the military, marked a
significant development in the use of the privacy concept to protect the sexual
orientation of persons in not merely the inner circle of his private life but in
professional or business aspects of life and relationships.29 The European
Court of Human Rights consistently refused to pronounce on arguments of
discrimination based on different ages of consent between homosexuals and
heterosexuals in the decriminalisation30 cases mentioned earlier and only
recently pronounced favourably in the case of Sutherland v the UK31 where a
violation of article 8 was found in conjunction with the discrimination
provisions of article 14 of the ECHR. It may be said, that the ECHR has acted
slowly in developing a comprehensive normative framework for the
development of gay rights beyond the decriminalisation of buggery.

The reasoning offered by the majority of the US Supreme Court in the case of
Bowers v Hardwick32 closely resembles the rhetoric employed in the
Caribbean to retain buggery laws. In denying the applicants constitutional
challenge of the Georgia sodomy laws, Justice Bryan of the majority
pronounced that the Federal constitution did not confer a fundamental right
upon homosexuals to engage in sodomy. He cited the historical origins of the
sodomy laws and found that its prohibition was “deeply rooted in this
Nation’s history and tradition”. He predicated the rational basis for sodomy
laws on notions of morality and the presumed belief of the majority of the
electorate in Georgia that homosexual sodomy was immoral and unacceptable.
The Court did not reject previous case law that had interpreted the
Constitution in ways that protected private relationships in marriage and

28
European Court of Human Rights, 1999; www.echr.coe.int/eng/Judgments.htm
29
See Niemetz v Germany, (1992), Ser. A, No 251-B, para 29
30
Dudgeon, Norris and Modinos ,supra n 27; in Johnson v UK (No 10389/83) (1986), 47 DR 72, the
Court found no violation of art 8 in conjunction with art 14
31
App No 25186/94, 24 Eur Hum Rts Rep (Comm’n Supp)C. D 22(1997)
32
478 US 186 (1986)

10
 family, but nevertheless refused to extend this protection to homosexuality
between consenting adults. 33
Justice Blackmun, in his vigorous dissent saw the issue as the Constitutional
“right to be let alone”. He argued that:
“Only the most wilful blindness should obscure the fact that sexual intimacy
is a sensitive key relationship of human existence ... the fact that individuals
define themselves in a significant way through their intimate sexual
relationships with others suggests in a Nation as diverse as ours, that there
may be many “right “ ways of conducting those relationships...”
Justice Blackmun flayed the recourse to the antiquity of the laws of the
majority and declared that the age of laws did not render them inscrutable,
especially when the grounds on which they were established had now
vanished. His construction of the right to privacy was not merely spatial, but
was expansive enough to protect the right to express personality and develop
intimate associations without interference by the State.
The gulf in the majority and dissenting views of Bowers reflects the different
concepts of Nation among the judges. The majority view constructed the State
in monolithic terms that speak via the majority sentiment while the dissent
saw the Nation as a plural entity that must have regard for the individual even
where the majority stands in opposition. Privacy is envisioned as the buffer
between State and individual. Sheldon Leader argues34 that the point of the
Convention and the Constitution is to test legislation against the respective
standards of both instruments. Where decisions are made wholly on account
of the fact that they represent the majority view of the community, as was the
case with the majority in Bowers, the judge has abdicated his/her role to
adjudicate and made the community a judge in its own cause.
In the subsequent case of Romer v Evans35, the US Supreme Court struck
down an amendment to the Colorado State constitution which prohibited
public measures designed to protect against discrimination against persons
based on sexual orientation. The Colorado measures in issue were not
dissimilar to provisions of a 1999 Equal Opportunities Bill presented to the
Parliament of Trinidad and Tobago36 that is designed to legally enforce the
right to non- discrimination, but by its clause 7, specifically excludes a
definition of “sex “ that may include “sexual preference” or “sexual
orientation”. The Bill succeeds in excluding non-heterosexual persons from its
proposed protections. Such a law, not unlike the Colorado amendments in
Romer, by its facial discrimination, must be seen as denial of equal protection

33
Roe v Wade, 410 US 113 (1973), Griswold v. Connecticut, 381 US 479 (1965)
34
S. Leader, The Right to Privacy, the Enforcement of Morals, and the Judicial Function : An Argument,
Current Legal Problems, 1990, edited by Roger Rideout & Bob Hepple , Sweet &
Maxwell/Stevens/Stevens
35
134 L Ed 2d 855 (1996)
36
supra 20

11
 of the law by its patent exclusion of homosexuals as a distinct group of its
citizenry.

The question of whither the Caribbean buggery laws is not merely a matter of
private homoerotic acts and whether they should be criminalised or not. It
speaks to the lack of protection of gay persons evidenced by clause 7 of the
Equal Opportunities Bill, the homophobic violence in the prisons in Jamaica
in 1997, and the lives of fear, harassment and humiliation that accompany the
assertion or imputation of homosexual identities. As the buggery laws are
applied in the Caribbean in relation to consenting adults engaging in anal
intercourse, the target of the law is undoubtedly the homosexual male. It is
more the “buggers” who are targeted and less the act of buggery itself. The
State sponsored inscription of criminality and deviance to the homosexual
man through the laws, and the absence of protection, if not promotion of
discrimination against homosexuality by the State, engenders a climate of
violence and hostility towards the male homosexual. The normative
framework that seeks to redress the constellation of abuses that inhere in
homosexual identities in the Caribbean must be premised on notions of
equality before the law, irrespective of sexual orientation37.

The Constitutional Court in the South African case of National Coalition of

Gay and Lesbian Equality and Another v The Minister of Justice 38 considered
the issue of equality before the law for persons of homosexual orientation.
They found that the sodomy laws constituted a breach of the rights to privacy
and dignity and as such constituted discrimination based on sexual orientation
that was unfair under the 1996 Constitution.39The Court noted the argument
that the privacy analysis is inadequate by suggesting that homosexuality is
shameful and therefore should be limited to the bedroom. It also noted the
contention that the concept of privacy did not contemplate a comprehensive
normative framework that addresses discrimination against gays in both the
private and public component of the lived experience. The Court however
reasoned that these concerns were based on an unnecessary and artificially
constructed contest between privacy and the equality/non discrimination norm
and an underestimation of the normative scope of privacy.

Firstly, the Court addressed the contest of rights by observing that the rights to
equality and privacy were violated simultaneously by the anti sodomy laws.
The right to equality was infringed because of the intrusion of private life that

37
See K Thomas “Beyond the Privacy Principle” in After Identity (eds) D Danielson and K Engle ,
Routledge, 1995, New York
38
http://www.law.wits.ac.za/judgements/1998/gayles.html
39
s 9(3) The state may not unfairly discriminate directly or indirectly against anyone on one or more
grounds, including race , gender , sex , pregnancy, marital status, ethnic or social origin, colour, sexual
orientation, age, religion, conscience, belief , culture, language and birth.

12
 is based on disrespect for a person of homosexual orientation and as such, the
dispensing of unequal treatment. Secondly, the Court adopted the expansive
construction of privacy reminiscent of the dissent in Bowers that did not
merely imagine the individual in isolation but in the entirety of his lived
experience, both public and private and the protection of his life choices
against the conflicting whim of the majority.
Thirdly, the Court was of the view that the equality principle was engaged by
the injury to dignity occasioned by sodomy laws of the class of persons called
gays based on their sexual orientation. The Court adopted a definition of
sexual orientation as “reference to erotic attraction: in the case of
heterosexuals, to members of the opposite sex; in the case of gays and
lesbians, to members of the same sex”. The Court found that gays were a
permanent minority who constituted a “distinct though invisible” section of
the community and whose identifying characteristics combined “all the
anxieties produced by sexuality with all the alienating effects resulting from
difference”. The injury to dignity wrought by the sodomy laws, resulted from
the consequent disenfranchisement from “full moral citizenship” and was
evidenced by the tainting of the homosexual desire and the attribution of
perversity and shame to spontaneous bodily affection among persons of
homosexual orientation.

This integrated notion of equality challenges constructed homogeneity by

affirming the variability of human beings. It makes discrimination based on
sexual orientation untenable by rejecting the majority sentiment as the
measure of what is legally normative. Buggery laws, by their violations of the
right to privacy and injury to dignity of homosexual men, are discriminatory
under this construction of equality before the law.
The Non Discrimination Norm
The non-discrimination norm and its receptiveness to matters of sexual
orientation, refuses to exist beyond contest. Article 2 of the Universal
Declaration of Human Rights is viewed as the contemporary statement of the
non-discrimination norm.40 It states that:
“Everyone is entitled to all of the rights and freedoms set forth in this
Declaration, without distinction of any kind, such as race, colour, sex,
language, religion, political or other opinion, national or social origin,
property, birth, or other status. “
The absence of “sexual orientation” as a self identified head of non-
discrimination, does not exclude it from the intended protection of this article.
The inclusion of an “other status” category by the drafters clearly
contemplated grounds of discrimination of similar repugnance that were either
not listed or that would evolve in society. This prototype of non-
discrimination is therefore free standing.

40
E Heinze,”Sexual Orientation and International Law: A Study in the Manufacture of Cross Cultural
‘Sensitivity’ “, 22 Michigan Journal of International Law (forthcoming 2001)

13
 This prototype of non-discrimination has now been embraced by the ECHR in
article 1 of Protocol 12. The Explanatory note41 states that the addition of an
“other status” is an attempt to liberalise the non-discrimination article 14 to
include unenumerated categories of discrimination including sexual
orientation, rather than the confinement of the scope of discrimination only to
rights under the convention, that existed before. General Comment 18 of the
HRC of the ICCPR42 explains that article 26 of the ICCPR is similarly free
standing and is premised on ensuring equality before the law. While both
articles 2 43and 2644 prevent discrimination based on enumerated categories
and the “other status”, article 2 limits its scope to protect against
discrimination to provisions under the Covenant but article 26 has no such
limitations. It is unassailable that the non-discrimination norm as it exists in
the major international human rights instruments, by their scope embrace
protection based on sexual orientation. To the extent that this norm
circumscribes legislation, acts such as buggery laws that criminalises persons
of homosexual orientation are clearly discriminatory.
This applicability of this norm has been tested not merely in the regional
human rights system of the European Convention The international refugee
protection initiative has been robust in this regard. Sexual orientation has been
found amenable to defence under international norms of non-discrimination
and the defence of human rights. In the case of Re GJ 45, the Tribunal found in
favour of an Iranian man who argued that he had a well-founded fear of
persecution based on his homosexuality inter alia. In construing that
homosexuals formed “a particular social group”, the court stated that sexual
orientation is either an innate or unchangeable characteristic or a characteristic
so fundamental to identity or human dignity that it ought not to change. The
Court used cases from all over the world46 that supported the position that
homosexuals constituted a particular social group overcoming the argument

41
http://www.dhdirhr.coe.fr/Prot12/Protocol%2012%20and%20Exp%20Rep.htm
42
UN Human Rights Committee, General Comment 18, non-discrimination, adopted at 37th session (1989),
UN Doc. HRI/GEN/1/Rev.1 (1994)
43
2(1) Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within
its territory and subject to its jurisdiction the rights recognised in the present Covenant without distinction
of any kind, such as race, colour, sex, language, religion, political, or other opinion, national or social
origin, property, birth or other status.
44
26 All persons are equal before the law and are entitled without any discrimination to the equal
protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons
equal and effective protection against discrimination on any ground such as race, colour, sex, language,
religion, political or other opinion, national or social origin, property, birth, or other status.
45
http://www.refugee.org.nz/rsaa/text/docs/1312-93.htm
46
See for eg, Sanchez-Trujillo v Immigration and Naturalisation Service, 801 F. 2d 1571 (9th Cir 1986),
Canada(attorney General) v Ward(1993)2 SCR 689

14
 that a genus based on sexual orientation lacked “organic consistency”47. The
Courts in these cases seem to have readily accepted homosexuals as a
legitimate demographic constituency deserving of protection against
discrimination.
Whither Toonen v Australia48 ?
The issues presented in the case of Toonen presented a good opportunity to
the Human Rights Committee under the Optional Protocol of the ICCPR, to
apply an integrated approach to the human rights issues engaged in the
decriminalisation of buggery. Toonen was a gay Australian citizen resident in
the Australian State of Tasmania. He argued that sections 12249 and 12350 of
the Tasmania Criminal Code charging unnatural sexual intercourse and
indecent practice between males respectively, violated his rights under articles
2(1), 17 and 26 of the ICCPR.51 . The Committee found a violation of article
2(1) and 17(1) but did not consider it necessary to consider a violation of the
non-discrimination provision of article 26. They felt that the enjoyment of the
right to privacy should be ensured to the citizenry of Australia as was
guaranteed under article 2(1) of the Covenant and interpreted “sex” in article
2(1) to include “sexual orientation”.
In assessing the reasonableness of the retention of the laws, the Committee
rejected the Tasmanian arguments that moral issues were purely a matter of
domestic concern. The Committee noted the fact that Tasmania was the only
Australian State that retained buggery laws and that the State party had
conceded both that a reasonable level of tolerance existed towards
homosexuality throughout the rest of Australia and the lack of “reasonable
and objective criteria” of the contended provisions of the Tasmania Criminal
code.

47
See Eric Heinze, “The Construction and Contingency of the minority Concept” in D. Fottrell and B
Bowring (eds) , Minority and Group Rights in the New Millenium, the Hague, M Nijhoff Publishers, 1999,
48
1 Int Hum Rts Reports 97 (No 1994)
49
Any person who

a) has sexual intercourse with any person against the order of nature

b) ...

c) consents to a male person having sexual intercourse with him or her against the order of nature is
guilty of a crime
50
Any male person who, either in public or private, commits any indecent assault upon or other act of gross
indecency with another male person, or procures another male person to commit any act of gross indecency
upon himself or any other male person is guilty of a crime.
51
17(1) No one shall be subjected to arbitrary or unlawful interference with his private, family, home or
correspondence, nor to unlawful attacks on his honour and reputation.

17(2) Everyone has the right to the protection of the law against such interference or attacks.

15
 The decision is problematic in its construction of “sex” to include “sexual
orientation”. The recent Explanatory note to Protocol 12 of the ECHR52
indicates that the notions of “sex” and “sexual orientation” have separate
meanings in international law. It is a sustainable argument that in spite of the
facial gender neutrality of the law against unnatural intercourse of the
Tasmania Code, it disproportionately affected homosexual men and thus
ranked as discrimination based on sex. The law against gross indecency was
directed wholly against men and therefore discriminatory based on sex.
However, the lumping of “sex” and “sexual orientation” fails to countenance
the particular nuance produced by homosexuality and the peculiar problems
that it presents for protection under the Covenant. The use of the “other
status” provision under article 2(1) (and 26) would have been eminently more
satisfying. .

It is also regrettable that the Committee did not go on to find discrimination

under article 26 of the Covenant. Such a finding would have authoritatively
propounded the genus of “homosexuals” as “equal before the law” and as
such, amenable to protection from discrimination. By stopping short of this
finding, the Committee has left a flawed precedent, in a largely uncontested
matter involving a recalcitrant Australian State. The Committee offered little
if any assistance on the normative bounds of its construction of privacy.
The decision of Toonen must nevertheless, be considered of the utmost moral
persuasion in the Caribbean. The UN Committee on Human Rights may hold
a good claim for being representatively “international” and this was
exemplified in Toonen where the panel included a Jamaican expert. As States
that have ratified the ICCPR, the decision is not binding but article 2(2)
prescribes a duty to implement the rights of the Covenant and a further duty to
“ensure [that] any person whose rights or freedoms [are] violated shall have
an effective remedy” under article 2(3)(a). The decision Toonen constitutes an
interpretation of the Covenant that reflects the Committee’s view of the scope
of privacy and its effects on buggery laws. Signal to this is the Concluding
comments of the 70th session of the Human Rights Committee involving
Trinidad53 where the Committee recommended the extension of the provisions
of the Equal Opportunities Bill to include protection based on sexual
discrimination. This must be seen as indicative of force of the spirit of the
decision of Toonen and indicates that protection based on sexual orientation is
not meant to be culturally relative, but universal.
Enforcement of International Human Rights Norms in the Caribbean
The question of whether buggery will be decriminalised for consensual sex
between adults is unfortunately, more a political question in the Caribbean
than a matter of international human rights law. The experience of the
Caribbean and international human rights bodies and the death penalty augurs

52
supra n 48
53
CCPR/CO/70/TTO, November 3, 2000

16
 ill for the triumph of human rights norms. The Judicial Committee of the
Privy Council has exhibited some boldness in infusing international human
rights norms in relation to the death penalty54. That has been the primary
source of engagement between domestic law and international human rights
law and was facilitated until recently, by the prolific use of the Optional
Protocol by Jamaica and Trinidad55. However, the use of these bodies ranged
from compliance by changing legislation to downright refusal to heed the
recommendations of the Human Rights Committee.56 This culminated in the
unprecedented renunciation of the Optional Protocol by Jamaica and Trinidad.
The relationship with the judicial Committee of the Privy Council is in the
advanced stages of being severed as well. It is argued that apart from the
nationalist reasons offered for the institution of the proposed Caribbean Court
of Justice, a perceived abolitionist agenda of both the HRC and the Judicial
Committee of the Privy Council has been the predominant reasons for the
departure, from the Privy Council.
Heinze argues that a manufactured “sensitivity” plagues the vindication of
human rights in matters concerning sexual orientation57. Britain has
disregarded “sensitivity” in relation to its overseas territories to ensure its
compliance under international human rights treaty bodies. The European
Union has threatened to attach aid to the Caribbean to human rights record
touching and concerning the abolition of the death penalty and the
decriminalisation of consensual sex between consenting adults.58 This has
attracted howls of protest and arguments of the evils of globalisation and neo-
imperialism.
It is argued that the action of the EU and Britain are consistent with the
responsibilities of the community of nations under the UN Charter. The
purpose of the UN are stated under article 1(3) of the UN charter to “...
promote and encourage respect for human rights and for fundamental
freedoms for all, without distinction as to race, sex, language or religion.” By
article 56, states “pledge” a commitment to the efforts of the United Nations
to promote “universal respect for and observance of human rights and
fundamental freedoms for all without distinction as to race, sex, language or

54
See Pratt & Morgan and Neville Lewis ,supra n 12 and 15 respectively
55
See reference to Elizabeth Evatt, “Reflecting on the Role of International Communications in
Implementing Human Rights” in International Human Rights Law in Context ,(eds) H. Steiner and P.
Alston, Oxford University Press, New York, 2000
56
supra n 17;

Ashley v Trinidad, HRC Report,G.A.O.R.,49th Sess.,Supp.40,Vol.1,p70(1994), a sentence of capital

punishment was carried out in a pending case despite the Committee’s request to the contrary
57
Supra n 53
58
supra 20

17
 religion” as is contained in article 55(c). The case of Barcelona Traction 59has
long propounded that the protection of certain rights are obligations erga
omnes in that all States can be held to have a legal interest in their protection.
While the case of Barcelona Traction referred to “the outlawing of acts of
aggression and of genocide, as also the principles and rules concerning basic
human rights of the human person including protection from slavery and
racial discrimination”, it is submitted that the scope of duties erga omnes as is
enumerated in Barcelona Traction should not be seen as exhaustive, but
illustrative. The case of Barcelona Traction was not a human rights case and
the list may be viewed as a statement of what was perceived to be most
invidious at the time. It is argued that the list of non-discrimination that
engages the erga omnes duties of States is not closed.
The non-discrimination norm is an emerging norm. Its present lack of
universality does not preclude the interest of other States being engaged, but
may mediate the breadth of the involvement of States in the “domestic
matters” of others in matters of discrimination. It is argued that attaching aid
to human rights record is wholly proportional to the invidious nature of the
abuse wrought by the buggery acts.
If moral concerns are not exclusively within the domestic realm of individual
states, it has certainly been proven that private acts are not. The positive duties
of States to act to protect its citizenry are established in International law. This
is also true for the obligation of States to protect whole classes of persons
from discrimination. And it has already been presented that far from merely
protecting private acts; the criminalisation of buggery speaks to the
criminalisation of a whole group of persons.
Conclusions
There is no doubt that the buggery laws in so far as it prohibits consensual sex
between adult men constitutes both violations of the right to privacy and the
right to equality before the law and non-discrimination at international law.
Given the virulence of the opposition in the Caribbean to the suggestion of
decriminalisation of consensual homosexual sex, the resolution of this matter
will necessarily be political than juridical. International Human rights law will
only provide the normative basis for strategizing and perhaps some reasoned
persuasion. The matter will certainly not be resolved via the Courts but
through legislative action occasioned by a political will. It is submitted that
this will need not originate in the Caribbean as the matters at hand transcends
the national boundaries, individual Caribbean states, and their subjects.

59
I.C.J Rep 1970, p 3

18
 Recommendations for Action
The greatest concern in regard to the protection of rights for sexual minorities in
Jamaica is the current legal framework that offers no specific constitutional
protections for sexual minorities as a class, and criminalizes consenting same-
sex intimacy between adult men. As mentioned in the work of Mr. Dayle above,
successful revisions to this framework will most likely have to come from
legislative changes advanced by government leaders rather than from court
decisions. As a result, efforts must be made to persuade elected officials to take
the hugely unpopular step of promoting the repeal of the Buggery Law and the
Gross Indecency Law, if not also including constitutional protections for sexual
minorities.

To be successful, these efforts of persuasion should come from both internal and
external sources, and stem from three arguments – public health, economic gain
and human rights. The public health argument is based on the premise that laws
which discriminate against men who have sex with men detract from efforts to
reduce the spread of HIV/AIDS. Leading health officials worldwide, and in
Jamaica, support this argument. The economic argument has been advanced in
several ways. First is the revenue lost from the tourism sector due to the
discriminatory laws, police abuse thereof, and the high degree of homophobia in
Jamaica. Other public costs include health care cost related to HIV/AIDS,
productivity costs as sexual minorities are displaced from homes and
communities, and costs related to enforcement of the discriminatory laws. The
human rights argument focuses on personal liberty, and adherence to
Constitutional principles and international treaties.

These arguments must be advanced both from within Jamaica and from external
entities. Local pressure must be spearheaded by interested non-government
organizations supported by sympathetic public officials and concerned business
and civic leaders. External pressure must come from foreign government
leaders and international monetary organizations. Trade and support must be
tied to measurable progressing in addressing all the human rights abuses in
Jamaica, including those of sexual minorities.

In addition to these efforts to persuade political leaders to legislate change, a

continued campaign to change the public perception of sexual minorities must be
advanced. Without some level of public tolerance, elected officials will not
advocate legislation that threatens their support at the polls. A public backlash to
progressive legislation, especially one promoted by the overwhelming
Fundamental Christian majority, could lead to more discriminatory laws rather
than fewer.

19