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Antigua and Barbuda is the latest country where civil society has scored a victory in challenging laws that criminalise LGBTQI+ people. On 5 July the Eastern Caribbean Supreme Court (ECSC) ruled that sections of Antigua and Barbuda’s Penal Code that criminalise same-sex acts are unconstitutional.

The ECSC is the court of the Organisation of Eastern Caribbean States, which includes six independent states – Antigua and Barbuda, Dominica, Grenada, Saint Kitts and Nevis, Saint Lucia and Saint Vincent and the Grenadines – along with three British Overseas Territories.

Antigua and Barbuda is one of several Caribbean countries with national laws that blatantly discriminate against LGBTQI+ people. These anti-LGBTQI+ laws are remnants of the colonial era, but only four out of 12 Commonwealth Caribbean countries took the necessary steps to reform them after independence. Civil society is increasingly going to the courts to change this.

LGBTQI+ discrimination unconstitutional

The ECSC ruled on a challenge to the constitutionality of two sections – 12 and 15 – of Antigua and Barbuda’s Sexual Offences Act of 1995. These sections addressed the offences of ‘buggery’ and ‘serious indecency’. Section 12 listed ‘buggery’ – defined as anal sex between two men – as an offence liable to imprisonment for up to 15 years, even when involving two consenting adults. Repeat offenders were to be placed on a Sex Offenders Register for the rest of their life.

Section 15 stated that the offence of ‘serious acts of indecency’ – described as an act ‘other than intercourse’ aimed at ‘arousing or sexual gratifying sexual desire’ – carried a maximum of five years in jail.

The Court found that these provisions violated ‘the right to liberty, protection of the law, freedom of expression, protection of personal privacy and protection from discrimination on the basis of sex’. The judgment went further, prohibiting constitutional discrimination based on sexual orientation or gender identity. A precedent has been set and LGBTQI+ civil society, in Antigua and Barbuda and across the region, expects more change to follow.

The road to victory

The United Nations (UN), through the Human Rights Council’s Universal Periodic Review process, has been calling for reform for over 20 years. In response to criticism from the Council in 2016, the Antigua and Barbuda government stated that these laws were only used against adults who assaulted children, but still recognised the need for a change to align its legislation to human rights standards.

Later that year – after the Supreme Court of Belize ruled the country’s anti-LGBTQI+ legislation unconstitutional – the Antiguan government rejected the possibility of repealing its law but suggested that activists bring a case to court.

In 2019, the Eastern Caribbean Alliance for Diversity and Equality (ECADE) took up the call and launched five legal challenges in Antigua and Barbuda, Barbados, Grenada, St Kitts and Nevis and St Lucia. These challenges had been in the works since 2015, but gained momentum after the 2016 victory in Belize and a similar 2018 change in Trinidad and Tobago.

The cases were filed by ECADE on behalf of member organisations and affected citizens in each of the countries concerned. Several international and regional partners – such as the Human Dignity Trust and the Faculty of Law University of the West Indies Rights Advocacy Project (U-RAP) – were also involved.

For the Antiguan case, there were two claimants: an out gay man who works for the government and Women Against Rape, a civil society organisation (CSO) that works with LGBTQI+ people and other groups affected by sexual violence and discrimination. Civil society was involved in every step of this fight, proving the power of resource sharing, collaboration and perseverance.

Upcoming cases

Following the ESCS’s landmark ruling, Antigua and Barbuda became the third country in the Caribbean to decriminalise same-sex acts via the courts. This offers hope for the other, pending legal challenges that have been brought in the region.

Commonwealth Caribbean countries have similar criminal justice systems based on the principles of English common law. In three countries – Grenada, St Lucia and St Vincent and the Grenadines – the discriminatory clauses in question are contained in their criminal codes. In Barbados, they are part of the Sexual Offences Act, while in St Kitts and Nevis they are included in the Offences Against Persons Act. But the basic tenets of all these pieces of legislation are the same.

Additionally, all but Barbados are subject to the ESCS’s jurisdiction and, as the final court of appeal, the Judicial Committee of the Privy Council. Barbados is the only country with a different judicial system, with its own appeal court and the Caribbean Court of Justice as the highest court.

This strong judicial similarity bodes well for the remaining five cases, judgments on three of which are expected by this year. In addition to these lawsuits, there are active challenges against LGBTQI+ discrimination in Dominica, Jamaica and St Vincent and the Grenadines. Guyana is currently the only Caribbean Commonwealth country with a discriminatory law that is not being legally challenged.

Beyond court action

The ESCS’s recent judgment is undoubtedly a step forward. While Antigua and Barbuda’s discriminatory law was hardly ever enforced, its existence was harmful because it gave a symbolic seal of approval and legitimisation to LGBTQI+ discrimination. Equal rights can’t be achieved without the repeal and reform of regressive laws. But more action is needed beyond legal change.

Even after laws are reformed, the everyday lives of countless LGBTQI+ people will remain marred by marginalisation and social exclusion. Belize is the only country of the bunch whose constitution provides protection against discrimination based on sexual orientation. Only St Lucia enshrines explicit protections against discrimination in employment based on sexual orientation.

None of the countries concerned clearly prohibit incitement to hatred, violence and discrimination based on sexual orientation. None of them have bans on so-called ‘conversion therapy’, a practice that aims to change an individual’s sexual orientation or gender identity, and that the UN expert on sexual orientation and gender identity considers akin to torture. None recognise same-sex unions or allow joint adoption by same-sex couples.

Chances of further progress currently seem low. In Antigua and Barbuda, the government has said it doesn’t intend to make further efforts to enshrine rights and protections for the country’s LGBTQI+ people because it doesn’t want to ‘move too far away from the population’.

The road to change

Further progress will only come as a result of struggles to change social attitudes, challenging prejudice and stigma. If no effort is made to sway public opinion, even sympathetic politicians will refrain from supporting change, wary of their voters’ verdict and the prospect of their adversaries benefiting by mobilising an anti-rights backlash.

Social change takes time, but it is possible – and in Antigua and Barbuda, it may be more within reach than elsewhere in the region, as stigma against LGBTQI+ people is not as pervasive.

Throughout the Caribbean, civil society efforts to further visibility and normalise the presence of LGBTQI+ people are on the rise, and acceptance of LGBTQI+ people is growing.

Civil society will continue to fight for the full equality of all people, and will do so by working simultaneously on two fronts: seeking to change unjust laws to shape more tolerant attitudes, and promoting practices of acceptance and non-discrimination to force the law to catch up with evolving times.