Barbados: third time’s a trend
On 12 December, the High Court of Barbados ruled the criminalisation of same-sex relations unconstitutional. Following in the footsteps of Antigua and Barbuda and St Kitts and Nevis, where similar laws were struck down earlier this year, Barbados joins a progressive wave of Commonwealth Caribbean states shaking off the regressive remnants of British colonial rule. Barbadian civil society now has its eyes set on further legal progress and translating this into social and cultural change, while activists in the region continue to push so that the six remaining Caribbean states that still criminalise same-sex relations follow suit.
Content warning: this article contains language some may find offensive.
On 12 December, Barbados’ High Court struck down two sections of the 1992 Sexual Offences Act that maintained a colonial-era criminalisation of consensual same-sex relations. In an oral ruling, to be substantiated in writing at a later date, the court concluded that criminalisation was unconstitutional.
This made Barbados the fifth country in the Commonwealth Caribbean to decriminalise same-sex behaviour through the courts, and the third to have done so in 2022: similar decisions were issued in July and August by the Eastern Caribbean Supreme Court (ECSC), the top court for members of the Organisation of Eastern Caribbean States, effectively decriminalising same-sex relations in Antigua and Barbuda and St Kitts and Nevis.
Change in the Commonwealth Caribbean: late but fast
Criminalisation of consensual homosexual sex dates back to the British colonial era. All former British colonies in the region inherited criminal provisions targeted at either LGBTQI+ people in general or gay men in particular, and typically retained them following independence and in subsequent reforms of their criminal law.
That’s what happened in Barbados, which declared its independence on 30 November 1966 but retained provisions criminalising homosexuality dating from 1868 in its 1992 Sexual Offences Act. Section 9 of this law, which punished sex between men under the heading of ‘buggery’ with sentences of up to life imprisonment, was transposed verbatim from colonial-era legislation.
The crime listed in section 12, ‘serious indecency’ – broadly defined as any act ‘whether natural or unnatural by a person (man or woman) involving the use of the genital organs for the purpose of arousing or gratifying sexual desire’, punishable with up to 10 years in prison – was first introduced in 1978, but was modelled on the colonial-era crime of ‘gross indecency’.
In Barbados, as in other countries in the region with similar provisions, custodial sentences for these crimes have rarely been imposed in recent decades. But these legal prohibitions have had persistently harmful effects: they have stigmatised LGBTQI+ people, legitimised social prejudice and hate speech, enabled violence, including at the hands of the police, obstructed access to key social services, notably healthcare, and denied people the full protection of the law. As a result, LGBTQI+ lives remained shrouded in uncertainty and fear.
Change began to occur relatively recently, but at a rapid pace. The region’s first public Pride event, a measure of the LGBTQI+ movement’s boldness and growing visibility, was held in Jamaica – a country that still criminalises same-sex activity – in 2015. At the week-long event, the local LGBTQI+ community experienced the validation and sense of purpose that comes when people can gather in numbers and claim public space. There was no going back from this, and the tables soon started to turn.
Trinidad and Tobago had its first Pride event in July 2018, barely three months after its sodomy law was struck down. Barbados held its own at the same time, shortly after LGBTQI+ activists filed a petition with the Inter-American Commission on Human Rights (IACHR) against the legal provisions criminalising same-sex sexual relations. Less than four years later, those provisions are gone.
The legal challenges
Change in Barbados was made hard by a constitutional ‘savings clause’, common among former British colonies, meant to protect laws inherited from colonial rule from constitutional review, even when they’re incompatible with fundamental rights also constitutionally guaranteed.
That’s why LGBTQI+ activists started by filing a complaint with the regional human rights system, whose role is to ensure compliance with the American Convention on Human Rights. Barbados ratified the convention in 1981 and recognised the jurisdiction of the Inter-American Court of Human Rights in 2000 – becoming the only Commonwealth Caribbean state under the binding jurisdiction of this regional tribunal.
In June 2018, Trans Advocates and Agitation Barbados, the Canadian HIV/AIDS Legal Network and the University of Toronto’s International Human Rights Programme filed a petition with the IACHR, Hoffman et al v. Barbados, on behalf of three local LGBTQI+ people: Alexa Hoffmann, a transgender woman and the only one mentioned by name, along with a lesbian woman and a gay man.
After reviewing the case, in July 2019 the IACHR gave the state of Barbados three months to submit its response. In the absence of a response that included steps towards repealing the articles in question, the IACHR could refer the matter to the Inter-American Court of Human Rights, which could review the case and mandate Barbados to repeal them.
In the meantime, on 1 November 2019, the Eastern Caribbean Alliance for Diversity and Equality (ECADE), a regional LGBTQI+ rights organisation, announced the launch of a five-country litigation strategy challenging the criminalisation of private, consensual sexual activity between same-sex adults. This resulted in the subsequent filing of lawsuits in Antigua and Barbuda, Barbados, Grenada, St Kitts and Nevis and St Lucia.
In Barbados, the only one of these countries not under the ECSC’s jurisdiction, the lawsuit was filed with the Barbadian High Court. It was brought by two Barbadian LGBTQI+ activists along with two civil society organisations, Equals Barbados and ECADE.
A clean slate
In November 2021, Barbados severed its ties with the British monarchy and became a republic, replacing Queen Elizabeth II as head of state with a president. A year on from the start of this transition, the High Court delivered its historic ruling declaring sections 9 and 12 of the 1992 Sexual Offences Act unconstitutional.
The ongoing constitution-making process opens the biggest window of opportunity for change in generations. A week before Sandra Mason was sworn in as the first president of her country, Prime Minister Mia Amor Mottley introduced a new charter to parliament that acknowledged respect for sexual orientation and gender identity as a human right.
Drafted by the Republican Status Transition Advisory Committee following consultations with the public, civil society, faith-based organisations, LGBTQI+ groups, the Barbados Association of Retired Persons and the Barbados Council for the Disabled, the charter has five articles, the first of which states that ‘all Barbadians are born free and are equal in human dignity and rights regardless of age, race, ethnicity, faith, class, cultural and educational background, ability, sex, gender or sexual orientation’.
Although the charter isn’t a binding legal document, LGBTQI+ activists expect it to set the tone of the future republican constitution. Give that anti-LGBTQI+ rules were carried over from colonial rule into independent life as a constitutional monarchy, the move to a parliamentary republic is, in the words of Donnya Piggott, co-founder of the Barbadian LGBTQI+ organisation B-Glad, an opportunity to ‘wipe the slate and determine who we are’ as a country.
The Constitutional Reform Commission appointed in June 2022 to advise the government on drafting a new constitution is expected to deliver its recommendations in 2023. LGBTQI+ rights campaigners will be looking for strong recognition of diversity in the constitutional text.
The road ahead
Resistance is to be expected, however, as some vocal conservative religious groups see gains in LGBTQI+ rights as losses in religious freedoms. They have been actively spreading disinformation and fuelling deep-rooted homophobia for years.
The religious backlash became apparent when LGBTQI+ people made their public presence felt at the first Pride march in 2018. Local church leaders, particularly from the evangelical New Testament Church, denounced what they called the LGBTQI+ ‘agenda’ to make ‘homosexual preferences’ a human right, characterising it as a form of ‘neocolonialism’ – even though what was rooted in colonialism was the denial of rights. Anti-rights forces pressured the authorities to try to get them to deny authorisation for the Pride march.
These groups have already objected to wording in the new charter, which did not include the word ‘God’ although it did reference a ‘Creator’, and plan to put up a fight in the constitution-making process. Church groups don’t speak with one voice, however. While still disapproving of homosexuality, leaders of the Anglican and Catholic churches have expressed opposition to the ‘buggery’ law on the grounds that this is a private matter in which the state should not interfere. More progressive religious groups have also started to challenge attempts to justify human rights violations with reference to religious beliefs, making them potential allies in LGBTQI+ struggles.
Barbados still has a long way to go to achieve the full legal recognition of LGBTQI+ rights, starting with the establishment of legal protections against discrimination.
Legal progress must also be accompanied by social change. The challenge is to replace the vicious circle of legal prohibition that strengthened social stigma with a virtuous circle, where legal advances normalise the presence of LGBTQI+ people and their social acceptance, in turn enabling effective access to the rights enshrined by law.
This change is happening, and happening fast. Only three years ago Barbados was listed as one of the most dangerous places in the world for gay travellers, after only Nigeria, Qatar, Yemen, Saudi Arabia, Tanzania, Iran and Sudan. Now it’s seriously starting to discuss same-sex marriage and the recognition of diverse gender identities and trans rights. Further victories, even in the face of anti-rights backlash, seem set to follow.
The landmark court ruling in Barbados is part of regional and global trends that are likely to continue. At least 66 countries in the world still criminalise gay sex, and six of them are in the Commonwealth Caribbean: Dominica, Grenada, Guyana, Jamaica, St Lucia and St Vincent and the Grenadines. Two of them are part of ECADE’s multi-country litigation strategy, which has already succeeded in three.
More progress is sure to come, and soon.
OUR CALLS FOR ACTION
The government of Barbados should review and reform all laws and policies that discriminate against LGBTQI+ people.
Barbadian 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 six remaining Commonwealth Caribbean countries.
Cover photo by Mixmike/Getty Images