LGBTI rights: Important legal precedent in the Caribbean

In a landmark decision delivered on Friday, June 10, the Caribbean Court of Justice (CCJ) ruled that as a homosexual I must be allowed into Belize and Trinidad notwithstanding their laws that ban the entry of gays. The court also urged both countries to repeal these archaic bits of legislation, which create confusion for travel by gay nationals within the Caribbean Community (CARICOM).

AIDS-Free World had helped me to bring this challenge and despite the court denying my application for a declaration that the statutes violate my right to free movement, the justices provided important clarification on the status of homosexuals across the region.

To that end, the CCJ specifically cited, with approval, the (reasonably) well-settled point in international law that discrimination based on sexual orientation contravenes at least the International Covenant on Civil and Political Rights (ICCPR) and cites another ground-breaking international case, Toonen v Australia, which led to the repeal of anti-sodomy laws in Australia.

The CCJ also flagged, in the same paragraph, that both the Universal Declaration on Human rights and the American Declaration as being “among the important international instruments that recognize the human dignity of every person.” Jamaica voluntarily subscribed to these instruments.
As a result of the novel nature of the case and the very important issues it addressed the court denied Belize’s application for me to pay their legal costs. There is no possibility of appealing the judgement and so it is now time for the states to act.

This matter is very important because, among other things, it sets important legal precedent that the existence of laws which discriminate against LGBTI people across the Caribbean must be very narrowly interpreted. This is important because the region still has the last remaining statutes banning same-gender intimacy in the Western Hemisphere.

In fact, when the court granted me leave to bring this matter on my own, after my own state of Jamaica refused to argue my case, it declared that the mere existence of these legislative travel bans create a prima facie case of unfair discrimination.

UNAIDS and other national and international agencies involved in the HIV response have identified that such laws contribute to the region having the second-highest HIV prevalence rate in the world after sub-Saharan Africa. This is because men who have sex with men (MSM) are driven underground, away for effective HIV prevention, treatment, care and support interventions.

In Jamaica, where the Inter-American Commission on Human Rights has found that British colonially imposed anti-sodomy laws contribute to horrific homophobic violence, the HIV prevalence rate among MSM is 33%, which is the highest in the Western Hemisphere if not the world.

There were nevertheless some puzzling conclusions reached by the court in arriving at its decision. For example, the judges found that my right to free movement had not been denied because, among other things, both countries have declared that they will not enforce this ban. This reasoning is problematic as a state can arbitrarily say it won’t enforce a law but as long as it remains on the books it may be deployed at a later date. And with the rising tide of homophobia globally, fuelled by powerful right-wing extremist that are very active in the Caribbean, there is no guarantee, in the absence of a repeal, that these statutes will never be enforced against CARICOM nationals, or other persons for that matter.

The court also found that since I was never denied entry at the border then my right to hassle free travel was not violated. However, this requires me to first undertake the expense of visiting either country and then be turned back before I can make a claim for a violation of my rights. This flies in the face of the principle of free movement because I will never book travel to Belize or Trinidad without the lingering thought that I can be arbitrarily denied entry simply because of who I am.

Despite these and other challenges, this case is an important milestone in the LGBTI liberation movement in the Caribbean. The region is incrementally moving towards full recognition of the rights and dignity of all people as is forcefully outlined in the Charter of Civil Society for the Caribbean Community. We will hopefully realize the Caribbean dream of full inclusion embodied in this noble document, one day.

This is an amplified version of the article “LGBTI rights in the Caribbean: Losing to win(,” published on June 10, 2016.

by Maurice Tomlinson
Source – Erasing 76 Crimes