A landmark ruling handed down in the Trinidad and Tobago High Court on Thursday, which decriminalizes sex between two consenting people of the same sex, has been immediately welcomed by the lesbian, gay, bisexual and transgender (LBGT) community region wide, including right here in Barbados.
“This landmark case signifies a necessary step in the decolonization of our independent Caribbean territories,” Ro-Ann Mohammed the co-director of Barbados Gays, Lesbians and All-Sexuals against Discrimination (B-GLAD) said in reaction, while suggesting that laws criminalizing consensual acts of love between autonomous adults were out of touch and sorry reminders of a British colonial era which the colonial master himself no longer subscribes to.
The ruling by Justice Devindra Rampersad, if allowed to stand, takes away the power of the state, which has been historically influenced by religious considerations, to control the sexual behaviour of any individual and would effectively revoke the authority given to it under Trinidad and Tobago’s buggery laws.
However, as regional pollster Peter Wickham rightfully cautioned on Thursday, it was still too soon for anyone to be popping any champagne corks over this development since the Keith Rowley government has already signalled its intention to appeal the interim ruling handed down against the state in a legal challenge brought by gay rights activist Jason Jones last year, and in any case, the final decision of the court on this matter is still pending.
Furthermore, as Mr Wickham pointed out, such a ruling will not be as easily replicated in countries such as Barbados which has an even “safer savings clause” than Trinidad and Tobago’s in its statutes that preserves all existing laws from challenge, including those which are incompatible with the fundamental rights spelt out in the Constitution.
Therefore, you would hardly expect to see the court successfully overruling the wishes of the state as expressed in the statutes, be it on buggery, the death penalty or a legislated cut in the salary of civil servants, even though the average person may feel hard done by the law in such cases.
Barbadians for the time being at least will therefore have to be guided by what the law states on these matters and not by the hope of any group or individual that they will be able to get the court to repeal any offensive sections of the Sexual Offences Act which currently limits their sexual expression.
With that said, amid a changing political tide it remains to be seen if our Government will be able to withstand the global pressure that has been mounting on countries to conform with the wishes of the gay lobby.
Just last month, the New York based Human Rights Watch, in a report entitled, I Have to Leave to be me: Discriminatory Laws Against LGBT People in the Eastern Caribbean, called on Barbados to “repeal section 9, Chapter 154 of the Sexual Offences Act of 1992, which criminalizes consensual same-sex conduct”.
The international human rights organization also suggested that the time had come for the island to recognize same-sex marriage and to provide the sort of atmosphere in which the LGBT community could live freely and without fear of persecution or victimization.
At a meeting in Geneva earlier this year, which was called to review the human rights records of UN member states, it was also recommended that Barbados decriminalizes same-sex unions.
However, despite the mounting calls for the laws to be adjusted, Attorney General Adriel Brathwaite has made it clear Government would not change the legislation, although he indicated there was no tolerance for discrimination which strikes at the heart of the Trinidad case, which was brought back 2017 by Jones, a gay rights activist, who claimed that the long-standing legislation contravenes his constitutional rights to privacy and freedom of thought and expression in addition to being in direct contradiction to his country’s international human rights obligations.
“It was a stunning victory for human rights and for all Trinidad and Tobago citizens . . . . I think we must all come together now after this judgment and embrace each other in true love and respect and honour for each citizen. This is not about LGBT, it is about the rights and freedoms that are enshrined in our constitution and I hope that everybody will come away with this calmly and collectively, looking at what the future should be for our nation. We have to now start to pull together and I think today is a starting moment for us to do that,” he said immediately following Thursday’s ruling.
When the ruling was filed last year, Jones had told reporters that he had decided to file the lawsuit due to his personal experience as a homosexual in Trinidad and Tobago, including the fact that he was disowned by his family, forcing him to migrate to the United Kingdom.
“I don’t wish to shove a gay agenda down your [the public’s] throat or attack your morals, religion or spirituality, I am doing this for the betterment of our nation, and for our feature generations,” he had stated at the time.
It should also be noted that his lawsuit is one of several filed by Caribbean LGBT activists challenging regional homophobic laws.
In 2016, Jamaican lawyer Maurice Tomlinson challenged the immigration laws in Trinidad and Tobago and Belize which allow for refusal of entry to regional homosexuals visitors.
While the Caribbean Court of Justice, which is Barbados’ highest court, eventually dismissed Tomlinson’s case, Belize’s Supreme Court recently struck down that country’s sodomy laws after a case similar to Jones’ was filed by a local activist.
However, unlike Trinidad and Tobago and Barbados which have savings clauses, Belize did not have a saving clause protecting its legislation from review.
For the moment, the issue of gay rights still hangs very much in the balance, but it is clear to see that there will be no letting up in terms of the current lobby. It therefore remains to be seen on what side the gavel will come down, as more intense pressure is brought to bear on both the legislative and executive branches of our states, with a view to changing the status quo.
Time will tell.