Three Barbadians — a trans woman, a lesbian and a gay man — today filed a petition before the Inter-American Commission on Human Rights (IACHR) challenging Barbados’ Sexual Offences Act (SOA).
Of particular concern to them are two sections of the domestic legislation, which has been on the statute books since 1868.
Section 9 criminalizes “buggery” or anal sex between men, or a man and a woman with the maximum penalty being life in prison.
While calling this the harshest buggery law in the Western hemisphere, petitioners are also challenging Section 12 of the Act, which criminalizes “serious indecency”, defined as any act by anyone “involving the use of the genital organs for the purpose of arousing or gratifying sexual desire”.
The maximum penalty is ten years in prison if the act is committed on or towards a person aged 16 or older or higher if the performed on a minor.
“With these laws, we have been stripped of the freedom to enjoy one of the most important aspects of any romantic relationship — intimacy,” said 24-year-old Alexa Hoffmann, lead petitioner in the case in which the other two applicants are seeking to remain anonymous.
Hoffman, a trans woman, is adamant that the legislation seriously discriminates against lesbians, gays, bisexuals, transgenders and queers (LGBTQ).
“Many LGBTQ Barbadians face stigma, discrimination and abuse every day — which are deemed permissible and certainly exacerbated by the existence of these hateful laws. I have seen many of my friends simply pack their bags and leave Barbados, even though our Constitution was designed to protect everyone as equals. These laws must be relegated to the dustbins of history.”
During a press conference today, Hoffman also said it was not easy being a transgender woman with the law as it now stands.
“When it comes to something as simple as going about day-to-day activities it is often fraught with verbal harassment, threats of violence, even actual violence,” she explained, while recalling an incident back in February when she was violently attacked.
However, she said she was forced to seek redress outside after being “spun like a top in mud” by local authorities.
“I was advised that if it is that my country is not doing as it should to ensure my human rights then I can make a petition as Barbados acknowledges the jurisdiction of IACHR so I can actually get my foot in the door.”
The move comes against the backdrop of a landmark ruling handed down in the Trinidad and Tobago High Court back in April, which decriminalizes sex between two consenting people of the same sex.
However, while that decision was immediately welcomed by the LBGTQ community region wide, including here in Barbados, regional pollster Peter Wickham immediately cautioned that it was still too soon for anyone to be popping any champagne corks over this development since the Keith Rowley government had signaled 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. Wickham also acknowledged at the time that a final decision was also still pending by the court on the matter.
Furthermore, he had pointed out that such a ruling would 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.
However, during today’s press conference, Maurice Tomlinson, senior policy analyst at the Canadian HIV/AIDS Legal Network argued that “at their core, these laws violate the human rights of all Barbadians, but they are overwhelmingly used to discriminate against LGBTQ people”.
He also said “evidence also shows that these provisions, and the stigma and discrimination to which they contribute, undermine an effective response to HIV.
“These laws directly contribute to the Caribbean having the second highest HIV prevalence rate after sub-Saharan Africa. Barbadian men who have sex with men (MSM) are particularly vulnerable and have an estimated HIV prevalence rate of 14 per cent, compared to 1.3 per cent in the general population.”
Tomlinson also quoted Prime Minister Mia Mottley as saying back in 2004 when she was Attorney General, that “a Government in a pluralistic society must accommodate and respect the human rights and the dignity of each individual.
“To that extent, law, which seeks to discriminate in a society whose history has been scarred with the cancer of discrimination, has in fact, to be reformed,” he stressed.
When contacted this afternoon, Attorney General Dale Marshall told Barbados TODAY it would be premature for him to comment since he had not yet seen the actual petition.
No timeline has been given for a decision by the IACHR on the petition which has received the backing of the Legal Network, along with Trans Advocacy & Agitation Barbados and the University of Toronto’s International Human Rights Program.