Jamaican Supreme Court stacks the deck against LGBT rights

The Jamaican Supreme Court dealt a setback last week to the lawsuit seeking to overturn Jamaica’s anti-LGBT sodomy law, blocking Jamaica’s LGBT-friendly Public Defender from participating in the suit, but opening it to nine conservative Christian groups.

This press release from the Canadian HIV/AIDS Legal Network makes the situation clear:

Jamaican Supreme Court admits religious groups as interested parties in challenge to Anti-Sodomy Law

‘Truly a David and Goliath situation’

Jamaica Supreme Court. (Photo courtesy of the Jamaica Gleaner)
Jamaica Supreme Court building. (Photo courtesy of the Jamaica Gleaner)

TORONTO, July 7, 2016 — Today the Jamaican Supreme Court handed down its ruling on applications by nine religious groups and the Public Defender to be interested parties in a challenge by Jamaican lawyer Maurice Tomlinson to the country’s anti-sodomy law. All the groups except the Public Defender were allowed in the case with full rights of participation.

“This is truly a David and Goliath situation, requiring me to respond to not only the government’s, but also the religious groups’ arguments,” says Mr. Tomlinson. The legal challenge, which is supported by the Canadian HIV/AIDS Legal Network and AIDS-Free World, argues that Jamaica’s anti-sodomy law violates the constitutional rights of its people.

The religious groups allege that they must participate in the case to defend the 1864 British colonially imposed anti-sodomy law that criminalizes all forms of intimacy between consenting adult males, even in private, because the statute protects their rights under the 2011 Charter of Fundamental Rights and Freedoms. These rights they claim include freedom of religion, equality before the law, the right to a healthy environment, and the right to privacy. They also claim that gay men must be banned from having sex because that will inevitably lead to the exploitation of children.

Arlene Harrison-Henry, Jamaica’s official Public Defender, has said that  LGBT Jamaicans “are entitled to equality, representation, and equal protection of laws.” (Photo courtesy of the Jamaica Gleaner)
Arlene Harrison-Henry, Jamaica’s official Public Defender, has said that LGBT Jamaicans “are entitled to equality, representation, and equal protection of laws.” (Photo courtesy of the Jamaica Gleaner)

“During the hearing of the applications, the court stated that some of the churches’ allegations seem far-fetched. Nevertheless, the court found that the opinion of the majority of Jamaicans — as reflected by the religious groups — was important in deciding what two consenting adults do in the privacy of their bedrooms,” says Mr. Tomlinson, asserting that the law violates his rights to privacy and non-discrimination.

There are other serious concerns with the anti-sodomy law. UNAIDS and other groups involved in the national HIV response have identified the law as contributing to the reason Jamaica has the highest HIV prevalence rate among men who have sex with men (MSM) in the western hemisphere, if not the world (33%). MSM are driven underground and away from effective HIV prevention, treatment, care and support interventions.

The Public Defender has indicated that she will seek leave to appeal the court’s ruling and the matter will likely be suspended until that appeal is heard. The full hearing is not expected to take place before 2017.

For more information on Mr. Tomlinson’s constitutional challenge, see our Q&A at www.aidslaw.ca/JamaicaQA.

Tomlinson also commented on the decision, pointing out the judge’s bias:

Jamaican court admits to cultural relativism in anti-sodomy challenge

Maurice Tomlinson (Photo courtesy of Facebook)
Maurice Tomlinson (Photo courtesy of Facebook)

Today, the J’can Supreme Court handed down its decision in the applications by 9 religious groups and the public defender to be interested parties in my constitutional challenge to the Jamaican anti-sodomy law.

The court rejected the application of the public defender and accepted all the religious groups.

That would be alarming enough, because these fundamentalists made unfounded arguments to the effect that the law is necessary to preserve their religious freedoms, privacy, a healthy environment, etc.

But the most problematic passage was paragraph 85 of the judgement where the judge said:

“…the court will have to consider whether the majority of Jamaicans consider homosexuality and more specifically buggery to be repugnant. I agree with these submissions entirely…”

At best, this reasoning is at odds with the constitutional principle of protecting minority rights from being trampled on by the will of the majority.

Meanwhile, the Public Defender sought leave to appeal and was denied by the judge and is now proceeding directly to the court of appeal to seek permission to bring the appeal. This may delay the hearing of the matter.

We don’t expect a full hearing until at least 2017.

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Written by Colin Stewart

Colin Stewart is a 45-year journalism veteran living in Southern California. He is the president of the St. Paul’s Foundation for International Reconciliation, which supports LGBTQ+ rights advocacy journalism, Erasing 76 Crimes. Contact him at [email protected]

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