Another breakthrough for LGBTQI+ rights in the Caribbean
In response to a lawsuit brought by civil society, on 29 August the Eastern Caribbean Supreme Court decriminalised homosexuality in Saint Kitts and Nevis. The court ruled that punishment of consensual relations between same-sex adults is a violation of constitutionally recognised privacy and expression rights. Civil society efforts will continue both to secure further legal protections and shift social attitudes that perpetuate exclusion. Decriminalisation is a global trend that has swept a dozen countries over the past decade, and more progressive change can be expected in the Caribbean: the case in Saint Kitts and Nevis was part of multi-country litigation initiative.
Content warning: this article contains language that some may find offensive.
It’s official: winds of change are blowing in the Commonwealth Caribbean. The region is shaking off the regressive hangovers of British colonialism that continue to criminalise same-sex relations and deny basic rights to LGBTQI+ people. In country after country, decisive steps are being taken towards recognising the universal right to a life free of discrimination and violence, regardless of gender identity or sexual orientation. Saint Kitts and Nevis has now become the fourth to decriminalise same-sex love through the courts.
This August, the Eastern Caribbean Supreme Court (ECSC), the top court for members of the Organisation of Eastern Caribbean States (OECS), ruled that Saint Kitts and Nevis’s laws criminalising same-sex acts contravened constitutional rights to the protection of personal privacy and freedom of expression, effectively striking them down.
Progress continues to outweigh setbacks: more countries are making strides towards equality than moving backwards.
It came in the wake of a similar decision in July that decriminalised same-sex relations in Antigua and Barbuda. Further victories are sure to follow, as these progressive rulings are coming in direct response to regional civil society litigation that set out to challenge so-called ‘buggery’, ‘anti-sodomy’ and ‘indecency’ laws in five Caribbean countries: Antigua and Barbuda, Barbados, Grenada, Saint Kitts and Nevis and Saint Lucia.
A colonial legacy
The criminalisation of consensual sexual activity between same-sex adults in the English-speaking Caribbean dates back to the British colonial era. People convicted under these laws can potentially be sentenced to between 10 years and life in prison. While custodial sentences have rarely been imposed for many years, the laws have continued to have damning effects: they stigmatise LGBTQI+ people, legitimise prejudice, discrimination, hate speech and violence against them, and deny them the full protection of the law.
All former British colonies in the region inherited similar criminal provisions targeted either at LGBTQI+ people in general or gay men in particular, and typically retained them following independence. In Saint Kitts and Nevis, sections 56 and 57 of the 1986 Offences Against the Person Act – which dated back to 1887 but was subsequently amended – prohibited sexual activity between men, referred to as an ‘unnatural offence’ and an ‘abominable’, ‘indecent’ and ‘infamous’ act. The law’s maximum penalty was 10 years in jail and could include hard labour.
Although these legal provisions haven’t been enforced for some time, they remained a barrier against LGBTQI+ people seeking and receiving basic social services, particularly healthcare. They slowed down progress towards building social acceptance and prevented the establishment of legal protections against discrimination. As a result, LGBTQI+ lives remained shrouded in uncertainty and fear.
While seemingly obsolete, the government refused to take these provisions off the books, possibly out of fear of the electoral consequences of a decision unpopular with socially conservative voters. Instead, as recently as 2012 the law was amended to increase the maximum possible penalty for ‘indecent assault’.
Repeat recommendations to repeal the criminalising provisions, made during the country’s examinations at the United Nations Human Rights Council’s Universal Periodic Review process, went unheard. But now the ECSC has issued its ruling, it isn’t up to the government anymore.
The legal challenge
On 31 October 2019, regional LGBTQI+ rights organisation Eastern Caribbean Alliance for Diversity and Equality (ECADE) announced the launch of its five-country litigation strategy challenging the criminalisation of private, consensual sexual activity between same-sex adults.
In Saint Kitts and Nevis, the case was brought in January 2021 by a private citizen, out gay man Jamal Jeffers, alongside a local LGBTQI+ organisation, the Saint Kitts and Nevis Alliance for Equality, with ECADE’s support.
When the multi-country litigation strategy was launched, ECADE’s head, Kenita Placide, explained that while important, this was the tip of the iceberg – the main part of the journey leading to the cases being filed focused on strengthening organising and challenging prejudice and discrimination. Once the time was ripe for the complaints to be submitted, victory would be a matter of time.
And so it proved. The complaint filed in Saint Kitts and Nevis claimed that sections 56 and 57 of the Offences Against the Person Act violated constitutional rights, and the Court agreed.
On 29 August 2022, the ECSC, which functions as Saint Kitts and Nevis’s high court, ruled that sections 56 and 57 were ‘null and void and of no force and effect’. Its arguments were similar to those of its earlier decision on Antigua and Barbuda.
Sections 56 and 57 had their defenders. The Evangelical Association of Saint Kitts, an umbrella organisation of around 30 Christian churches, sought to uphold them through an affidavit stating that interpretations of the constitution should be mediated by ‘the moral and religious fibre of the community’.
The state’s lawyers argued that sexual orientation was not covered by freedom of expression guarantees, that the issues were for parliament to decide and that toleration of same-sex activity would open ‘the floodgates to practices that could alter and compromise survival of the culture and personality’ of the country, supposedly founded on ‘belief in Almighty God and the inherent dignity in each individual’.
The court rejected their arguments on the grounds that ‘the court cannot shirk from its duty to interpret the Constitution’ and ‘public morality is not synonymous with religious dogma or public opinion’.
Having decriminalised same-sex relations, Saint Kitts and Nevis places 122 out of 198 countries on Equaldex’s Equality Index, which ranks countries according to their LGBTQI+-friendliness. The island nation scores 39 out of 100 points, a revealing measure of all that remains to be done. Outstanding issues include protections against discrimination, marriage equality and adoption rights, and recognition and protections for transgender people.
The Equality Index is an average of two indexes: a legal index that measures the legal situation of 13 different issues, including the legal status of homosexuality, same-sex marriage and transgender rights, and a public opinion index measuring public attitudes towards LGBTQI+ people using polls and surveys.
On the legal component, Saint Kitts and Nevis gets 63 points, but it only scores 15 on the public opinion index. The message is clear: changing laws and policies won’t be enough. Social attitudes lag far behind. Shifting them should now be the top priority.
LGBTQI+ organisations in Saint Kitts and Nevis and the Eastern Caribbean as a whole already knew this. That is why they worked to challenge prejudice and foster understanding for years before launching their legal challenge – and why they continue to view the court victory as not the end of the journey but a stepping stone to greater change.
Around the world, a powerful anti-rights and anti-gender backlash is underway, driven by fundamentalist neoconservative foundations based in the global north that are generously funding regressive movements everywhere. But even so, progress continues to outweigh setbacks: more countries are making strides towards equality than moving backwards.
The landmark court ruling in Saint Kitts and Nevis is part of a regional trend that is set to continue. Before Antigua and Barbuda, Trinidad and Tobago decriminalised homosexuality in 2018 and Belize in 2019.
Seven Caribbean countries still criminalise sexual relations between same-sex consenting adults: Barbados, Dominica, Grenada, Guyana, Jamaica, Saint Lucia and Saint Vincent and the Grenadines. All are former British colonies, and in all of them movements for change are rising. Three are part of ECADE’s multi-country litigation strategy, and in the case of Barbados, the only country not under ECSC jurisdiction, there is a pending petition filed at the Inter-American Commission on Human Rights.
Saint Kitts and Nevis’s move is part of a global trend that has made strides in Africa, Asia and Oceania. Over the past decade or so, homosexuality has been decriminalised in Angola, Botswana, Gabon, India, Lesotho, Mozambique, Nauru, Palau and Seychelles. In August, the government of Singapore announced it would follow suit.
More progress is sure to come, as civil society will keep pushing for it. The only question is where it will happen next.
OUR CALLS FOR ACTION
The government of Saint Kitts and Nevis should review and reform all laws and policies that discriminate against LGBTQI+ people.
Saint Kitts and Nevis’s LGBTQI+ rights groups should continue to push for both legal and social change.
Regional and international LGBTQI+ rights organisations should step up their campaigns for the decriminalisation of same-sex relations in the seven remaining Caribbean countries.
Cover photo by FG Trade/Getty Images