Jamaica’s new privacy rights may cancel old anti-LGBT law

Maurice Tomlinson of Jamaica and Canada has been involved in…

In 2011, Jamaica’s Parliament unanimously approved a new Charter of Fundamental Rights and Freedoms which, for the first time, explicitly guarantees the right to privacy. However, the Charter also appears to preserve the 1864 British colonially imposed anti-sodomy law. Under this law, intimacy between two adult men in the privacy of their bedrooms can land them in prison for up to 10 years at hard labour.

This creates an obvious contradiction: it is arguable that under the new Constitution it is now impossible to enforce the anti-sodomy law without breaching the new right to privacy. Although the Jamaican government has resisted calls to repeal the law, the leaders of Jamaica’s major political parties have repeatedly said that they have no intention of prying into the bedrooms of consenting adults.

Confusion about the interpretation of these competing provisions in the Charter is wreaking havoc on the private lives of Jamaican gay individuals. On behalf of one such person, young gay rights activist, Javed Jaghai, AIDS-Free World has filed a claim in the country’s Supreme Court seeking a declaration that the anti-sodomy law no longer applies to private acts of intimacy between consenting adult males. The first hearing of the case will take place on June 25, 2013.

Javed was evicted from his home because of his sexual orientation. The homeowner argued that, as a homosexual, Javed would break the law by engaging in intimate acts with other men on the premises.

Dr. Fenton Ferguson, Jamaica's minister of health. — Dr. Fenton Ferguson, Jamaica’s minister of health, has proposed changing Jamaica’s anti-sodomy law to protect the rights of LGBT people.

Sadly, Javed’s experience is not uncommon; gay Jamaicans endure almost daily intrusions into their privacy.

In 2005, two middle-aged men were convicted under the anti-sodomy law when a passing policeman viewed them through their bedroom window. In even more extreme cases, armed mobs have invaded the homes of homosexuals in an attempt to evict them; in other cases, homophobic neighbors have stoned and torched premises because they belonged to homosexuals or their families. Even 11-year-old LGBT youth have been turned out on the street by family members, and the mere suspicion of homosexuality can earn someone an abrupt eviction, or worse.

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These violations result in gay Jamaicans often having to pay a premium for housing. Those who cannot afford it end up homeless. The growing homeless LGBT population is presenting social and economic problems for Jamaica. There is also a grave health risk. Homeless LGBT sometimes turn to sex work as a means of survival where clients often pay more for unprotected sex.

The fear of an invasion into their privacy also impedes Jamaican men who have sex with men (MSM) from accessing public health facilities geared towards the treatment and prevention of HIV and AIDS. Moreover, due to the anti-sodomy law, public health campaigns and facilities geared towards HIV and AIDS prevention and treatment cannot explicitly target homosexuals and MSM, even though both groups are recognized to be at highest risk for new HIV infections.

As guardians of the Constitution, we fully expect that the court will live up to its duty to interpret the law in a manner that gives full effect to constitutional values and principles, including the newly enshrined right to privacy of consenting adult Jamaicans.