Respecting the right to loveThursday, March 04, 2021
On February 17, 2021 the Inter-American Commission on Human Rights (IACHR) made public its report on the petition of Gareth Henry and Simone Edwards, who alleged violations of their human rights by Jamaica. The 24-page report can be found online and contains a thorough review of Jamaica's sexual offences laws and their effect in stoking prejudice against gays.
A second report was published on the same day on the petitions of a gay man still living in Jamaica and a transsexual woman. All the petitioners had spoken of threats, insults, mob attacks, and police officers who refused to take action to investigate and charge the wrongdoers.
Gareth Henry, a gay Jamaican man, had suffered harassment and beatings over many years because of his sexual orientation. The police not only refused to investigate his complaints, but officers had themselves beaten him in front of a crowd, and had identified him as a gay man to a crowd who had chased and assaulted him. He became an advocate for lesbian, gay, bisexual, transgender (LGBT) rights and HIV prevention, and as such he was physically attacked many times. He fled from Jamaica and was granted asylum in Canada.
He said, after the decision was handed down, “All my life people have told me that who I am and who I love is wrong. Now, finally, I can say that I am right.”
Simone Edwards, a lesbian woman, narrowly escaped death when she was shot in 2008 in her home in Spanish Town in an attack by members of a homophobic gang. No charges were brought, even though one attacker had been identified at a parade. She was unable to return to her home because of threats, and she left Jamaica with her daughter and was granted asylum in the Netherlands.
The IACHR concluded that the laws and policies of the Jamaican Government had violated the petitioners' right to equality, their right to privacy, to humane treatment, to freedom of movement, to legality, and to judicial protection. It recommended that Jamaica provide full reparation to the petitioners; repeal the laws which criminalise “the abominable crime of buggery” and “gross indecency” between consenting adult men; and provide training for officers in the police and judicial services to ensure that such discrimination on the basis of sexual orientation is ended.
This year I will complete 30 years as a Jamaican attorney-at-law. It has been a wonderful experience. I belong to a profession in which there have been many passionate advocates. I have been involved in upholding the human rights of workers, Rastafari, the media, the rights of women abused in their homes, business entrepreneurs, and many others. I affirm that you can get justice from the courts of Jamaica, slow though it can often be.
But with the buggery laws I believe that we in the human rights lobby have failed. The arguments for repeal are so clear. What business is it of the State to interfere with the consensual love-making of adults in the privacy of their home? How can these laws be allowed to continue in a country where “one love” is celebrated? What right do the people of any religion have to impose their beliefs on the whole society on the basis that it is so written in Leviticus?
I have never been a party man in Jamaica. I have good friends in both political parties who have stood for human rights and justice. I implore them to take a grip on the issue of repeal of the buggery and gross indecency laws and reach a consensus which can soon be passed through Parliament. Don't make it a party dispute or a referendum issue, since the majority will likely vote against any change. The Charter of Human Rights and Fundamental Freedoms is founded on what is morally right, not what is electorally popular.
The IACHR report cites cases from all over the world in which these laws have been ruled unconstitutional. In the UK, the case of Dudgeon v UK from Northern Ireland, which I was proud to argue in the European Court of Human Rights in 1981, when Catholics and Protestants were united in their aversion to gays, showed how the human rights of a minority could and should be upheld.
In South Africa, a poetic judgement was given by the Constitutional Court on the theme that the right to privacy “recognises that we all have a sphere of private intimacy”.
In India the Supreme Court said that freedom of choice cannot be “scuttled...on the mercurial stance of majoritarian perception”.
In our own region, the courts in Belize and Trinidad & Tobago have reached the same opinion. The court in Trinidad & Tobago linked prejudice against gays with other forms of discrimination: “It is unfortunate when society in any way values a person or gives a person their identity based on their race, colour, gender, age, or sexual orientation, that is not their identity. That is not their soul. That is not the sum total of their value to society or their value to themselves.”
We in Jamaica are not familiar with the IACHR, but in its quiet way it has done much to advance justice and human rights, especially in Latin American countries which have had many experiences of dictatorship. Its president is our own Margarette Macaulay, who, as a Jamaican, could not take part in the Gareth Henry case, but whose commitment to the ideals of the Inter-American Convention on Human Rights is amazing.
The ruling has described as a landmark case, and it will be if it can inspire our people and our leaders to end a situation which is bad for Jamaica, which is seen as a backward and intolerant country on this issue, and even worse for those fellow citizens like Gareth Henry and Simone Edwards who had to flee from a country which said that their whole being and their loving were wrong, but who can now say that they were right.
Lord Anthony Gifford, QC, is an attorney-at-law. Send comments to the Jamaica Observer or firstname.lastname@example.org.