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Steady victories for gay rights

Published: 
Friday, August 19, 2016

It isn’t often that Caribbean people who support struggles for equality get good news. On August 10, 2016, the Belize Supreme Court struck down the country’s sodomy law as unconstitutional. This is an historic victory for our region and reflects home-grown leadership and strategising to secure greater justice through our institutions.

The movement to take a case to the courts was started by UWI Faculty, of whom we should be proud. In 2007, Jamaican legal feminist scholar Tracy Robinson, then at Cave Hill’s Faculty of Law, opened a conversation about litigation as a strategy.

Later discussion with Joel Simpson, then of the Guyanese LBGT organisation SASOD, Douglas Mendes SC, and Godfrey Smith, former attorney general of Belize, led to the formation of the Lawyers from the UWI Rights Advocacy Project (U-Rap). However, U-Rap’s litigation possibilities were first outlined in an UWI LLB research paper by Conway Blake in 2004, and drew on Jamaican lawyer Philip Dayle’s legal assessment of laws criminalising same-sex sex in the Caribbean in 2006.

U-Rap member, Guyanese Arif Bulkan, now at the Law Faculty in St Augustine, also worked with claimant, Caleb Orozco, a long-time LGBT activist, in this case against Section 53 of Belize’s Criminal Code. Counsel were Trinidadians Christopher Hamel-Smith and Westmin James, now deputy dean of the Faculty of Law at Cave Hill.

We need such fearless regionality, which included the community-based strength of Belizean LBGT and HIV Advocacy groups such as UNIBAM (United Belize Advocacy Movement ) and PETAL (Promoting Empowerment Through Awareness for Lesbian and Bisexual women), as well as Caribbean scholars and activists. 

Following Chief Justice Kenneth Benjamin’s decision, Caleb Orozco is quoted as saying, “This is the first day of my life in which it is legal for me to be me.” I can’t think of a more over-due experience, one which we can imagine enslaved ancestors felt as far back as 1834 when they were first formally recognized as human. We wait to see how this momentous precedent will affect law across the region as the long struggle for full emancipation for all, and recognition of the equal humanity of all, is re-energised with hope.

In another U-Rap case, four transgender women challenged a 1893 law against cross-dressing in Guyana, arguing that it reproduced discrimination on the basis of gender. In 2013, in what LBGT advocates decried as a “dubious decision,” the judge ruled that cross-dressing is a criminal offence only if it's done for an "improper purpose,” which could include prostitution. The law was considered to already allow cross-dressing to express or accentuate one's sexual orientation. In essence, the law was reinterpreted and upheld instead of being struck down as unconstitutional.

The Belizean case also comes after decades of work by a range of groups, from feminists to scholars to HIV/Aids activists to public health advocates, to create constitutional reform recommendations, policy positions and OAS resolutions committed to ending discrimination, inequity, stigma, vulnerability and human rights violations on the basis of sex, gender and sexuality.

Indeed, the Belize decision recognized that Section 53 of the Criminal Code, which banned “carnal intercourse against the order of nature,” and primarily targeted same-sex sexual activities, denied a right to dignity, privacy, equality and freedom.

Consenting adults of the same sex are now free from arbitrary or unlawful interference with their privacy and are due equal protection under the law, meaning simply what everyone else already expects and gets.

Key about the Chief Justice’s ruling was his view that the bill of right's protection of sex from discrimination includes sexual orientation. This reflects part of a larger, nuanced critique of legislation that polices sexual orientation as fundamentally and unfairly policing how LBGT people live their own conceptions of sexual rights and human rights as well as manhood and womanhood.

These legal challenges continue, pressing for discriminatory legislation to be taken off the books. Earlier this year, a CCJ ruling made clear that Caribbean homosexuals must be allowed the right of free movement within Caricom, and that immigration laws banning their entry, for example to Trinidad and Tobago, should be repealed.

Every generation, resistance against unjust laws and policies ignite across the region. That spark burns bright, fed by last week’s decision.

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