One step closer to LGBTQI+ justice in Jamaica
In February 2021, the Inter-American Commission on Human Rights (IACHR) published its report on a case brought by two LGBTQI+ people against the state of Jamaica. The state was found responsible for the violation of their fundamental rights and urged to immediately repeal its homophobic laws. This unprecedented decision – the first in which the IACHR stated that laws that criminalise LGBTQI+ people violate international law – brings hope of progressive change to the Commonwealth Caribbean, where nine countries still have 19th century colonial laws prohibiting same-sex relations. It should give fresh impetus to ongoing local attempts at advocacy and public engagement.
For too long, activists for LGBTQI+ rights in Jamaica have faced an unacceptable choice: live with violence and harassment, fall silent, or flee.
Prominent Jamaican LGBTQI+ rights advocate Gareth Henry knows the dilemmas only too well. He was continuously subjected to discrimination and physical violence due to his sexuality and activism. He could not expect the state to protect him, because sometimes it was people who worked for the state who attacked him: in 2007, he was beaten by four police officers in front of an angry mob. Fearing for his life, Henry left Jamaica in January 2008 and was granted asylum in Canada.
Simone Edwards faced systematic discrimination and abuse as a lesbian woman. In 2008 she was shot twice outside her home, along with two of her brothers, one of whom is gay. She lost one of her kidneys and part of her liver as a result. The perpetrators, who were identified and known in the community, were never prosecuted. Simone also fled Jamaica in fear of her life and that of her young daughter; both were granted asylum in the Netherlands.
Now at last the two have won some redress. In an unprecedented move, on the last day of 2020 the Inter-American Commission on Human Rights (IACHR) issued a report on the merits of a case brought by the two against the state of Jamaica. The IACHR found Jamaica responsible for the violation of the fundamental rights of Henry and Edwards, and urged the state to immediately repeal its homophobic laws. It was the first time the IACHR has issued a decision stating that legislation that criminalises LGBTQI+ people violates international law.
A landmark decision
The IACHR made its preliminary decision in September 2019 but initially kept it confidential to give those involved time to make additional submissions. Over the next months, however, the petitioners informed the IACHR that the government had failed to react to any of the report’s recommendations, and the Jamaican government refused to respond to any request for comment. The report was made public in December 2020 and communicated to the petitioners in February 2021.
The case was brought almost 10 years earlier by the Human Dignity Trust, a civil society organisation that uses strategic litigation around the world to challenge laws that persecute people on the basis of their sexual orientation or gender identity. The petition challenged Jamaica’s laws that criminalise private consensual sex between men on the grounds that these laws enable the discrimination and violence that forced Henry and Edwards to flee Jamaica and seek protection abroad.
In July 2018, the IACHR issued a decision that their petition was admissible, and a year later came its confidential decision on the substance of the case, finding the state of Jamaica in violation of the American Convention on Human Rights. And what a barrage of violations it was: the decision ruled that the rights to privacy, equal protection and non-discrimination, humane treatment, judicial protection and freedom of movement had been breached, along with the principle of legality, due to the fact that Jamaican law criminalises conduct relating to rights recognised by international human rights law.
In response to these violations, the IACHR urged the state of Jamaica to repeal its anti-LGBTQI+ legislation and take steps to protect LGBTQI+ people, including by adopting an anti-discrimination legal framework to prohibit discrimination based on sexual orientation, gender identity or expression and body diversity. It asked the Jamaican government to collect and analyse data on violence and discrimination against LGBTQI+ people, to act to prevent, investigate and punish violence against LGBTQI+ people, and to provide reparation in cases of violence. It also asked the government to train public officials on sexual orientation, gender identity and gender expression, body diversity and the challenges faced by LGBTQI+ people, and to design educational programmes with a gender perspective and include comprehensive sexuality education in the school curriculum.
The IACHR also urged the state of Jamaica to provide full reparation to Henry and Edwards for the human rights violations committed against them.
The IACHR’s report offers an opportunity for Jamaica’s government to signal that it is prepared to take LGBTQI+ rights seriously, step up its dialogue with LGBTQI+ rights groups and ensure the protection of its LGBTQI+ people – not only Henry and Edwards, but the many others who may be less prominent but continue to experience the same kinds of discrimination and violence that drove the petitioners to seek refuge abroad.
VOICES FROM THE FRONTLINE
Karen Lloyd is Associate Director of J-FLAG, a human rights and social justice organisation that advocates for the rights, livelihood and wellbeing of LGBTQI+ people in Jamaica.
Several sections of the Offences Against the Person Act (OAPA) of 1864 prohibit sexual activities between men. Section 76 criminalises buggery, section 77 criminalises any attempt to commit buggery and section 79 criminalises acts of gross indecency, which can include kissing, hand holding and other acts of male-to-male intimacy. Men convicted of buggery face a maximum of 10 years of hard labour. This and other laws relating to sexual offences that precede the Charter of Fundamental Rights and Freedoms are protected from rights-based challenges.
In the cases examined by the IACHR, the petitioners alleged that Jamaica was in violation of its obligation under the American Convention on Human Rights by continuing to criminalise private consensual sexual activity between adult males and by protecting these laws from being challenged. They claimed that this perpetuates Jamaica’s culture of violent homophobia and encourages the state and the general population to persecute not only male homosexuals, but also the broader LGBTQI+ community. They said they had both been victims of homophobic attacks.
The report by the IACHR concluded that the Jamaican government was responsible for these violations of their rights. The last we heard about it, the Attorney General’s department had acknowledged the decision and was preparing a response.
For civil society, it reinforced ongoing calls for amendments to the OAPA and became part of existing engagement with policymakers to have it changed. Advocacy efforts with legislators have continued to be difficult, however, because they are unwilling to be publicly associated with a call for repeal due to potential backlash by religious extremist groups and some members of the public.
However, after 20 years of advocacy, now there is sustained public conversation around LGBTQI+ rights, increasing public tolerance and a growing willingness among parliamentarians, policymakers and key decision-makers to engage with the local LGBTQI+ community, including steps in working with LGBTQI+ rights organisations and advocates to improve the lives of members of the community. Notably, J-FLAG has built and sustained a significant partnership with the Ministry of Health that has led to the training and sensitisation of over 500 healthcare workers to fight stigma and discrimination in the health sector.
This is an edited extract of our interview with Karen Lloyd. Read the full interview here.
A regional demand for rights
It isn’t just in Jamaica that anti-LGBTQI+ laws persist as a British colonial legacy. Eight other Commonwealth Caribbean countries still criminalise sex between men: Antigua and Barbuda, Barbados, Dominica, Grenada, Guyana, Saint Kitts and Nevis, Saint Lucia and Saint Vincent and the Grenadines. The same is true in many Commonwealth African countries – see our story.
LGBTQI+ activists in the Commonwealth Caribbean commonly get told that they are introducing imported behaviours that contradict the traditional cultures of their societies. When homophobia is noisy, it can be hard to make the obvious point: that it is hate that was imported by former colonial rulers over the freer customs that existed before.
But civil society is winning the argument. In every single one of these countries there are locally rooted LGBTQI+ rights organisations and activists that are using an array of strategies to change perceptions, shift narratives and build empathy and solidarity, while at the same time advancing legal and policy change.
All over the region, civil society groups are pursuing a twin track approach of shifting public opinion and challenging discriminatory laws. They are running media campaigns to raise awareness and educate people, monitoring the state of public opinion through surveys and research and enhancing visibility by holding public Pride events in ways that tap into local cultural capital and resonate with the public. At the same time they are developing partnerships with public bodies, training public officials and lobbying for legal change.
Organisations such as J-FLAG have noted that after decades of advocacy work, they are seeing some level of social change: public attitudes are shifting and LGBTQI+ issues are becoming less of a taboo so there is a growing public conversation around them. Some groups have been able to engage with public officials at the local or even national level, playing a role in areas such as the delivery of health services to LGBTQI+ people.
Progress in one domain helps foster shifts in another: changed public perceptions make it easier to lobby legislators, who won’t fear siding with progressive change if they see more of their voters supporting it.
But still, legal structures can be resistant to change – and this is where the IACHR decision could make a difference. Not being a tribunal, the IACHR does not issue rulings but rather non-binding decisions, including strongly worded recommendations such as those in this case. Governments are not forced to act on its recommendations, but are expected to respond to them. This means that IACHR decisions can shed a spotlight on problems and offer a rallying point for advocacy.
By highlighting the fact that Jamaica is violating internationally enshrined rights and contravening the region’s main human rights treaty, the IACHR’s recommendations offer Jamaica’s LGBTQI+ activists, and those in other Commonwealth countries, a new opportunity to apply some pressure. Moments such as these nurture hope that one day LGBQTI+ people in the region will just be able to live their lives respected and protected by their governments rather than criminalised.
OUR CALLS FOR ACTION
The state of Jamaica must respect the IACHR’s decision and implement all its recommendations without reservations.
Jamaica must repeal its legislation criminalising same-sex relations and enact new legislation to ensure the rights of LGBTQI+ people.
All Caribbean states that criminalise same-sex relations should align their laws and policies to the international human rights commitments they made under the American Convention.