The U.S. Supreme Court, LGBT rights and my Jamaica

Yesterday’s U.S. Supreme Court decision on LGBT rights will help LGBT Jamaicans in their struggle for recognition of their rights, Jamaican/Canadian activist Maurice Tomlinson writes.

Neil Gorsuch (left), associate justice of the U.S. Supreme Court; Maurice Tomlinson (right), Jamaican/Canadian LGBT rights activist lawyer.

By Maurice Tomlinson

COMMENTARY

I was elated, jealous and hopeful after reading the recent decision from the Supreme Court of the United States (SCOTUS) in the case of Bostock v Clayton County, Georgia. In a solid 6-3 majority decision written by conservative Trump-appointed Justice Neil Gorsuch, the court held that firing someone because of their sexual orientation or gender identity is prohibited sex discrimination.

The ruling in Bostock reaffirms what courts and tribunals from around the world have found: sexual orientation and gender identity are indistinguishable facets of sex and are thus constitutionally protected.

While the case is not binding on Jamaican courts, it will certainly be persuasive, especially considering similar findings by the UN, and courts in Belize, Botswana, Canada, India, Trinidad and Tobago, and others.
Bostock will therefore have implications for how Jamaican LGBT people live and claim our rights as full citizens of our country.

This is even though the 2011 revision of our Charter of Fundamental Rights and Freedoms removed “sex” from the non-discrimination clause and replaced it with “male and female”. This move was likely intended to prevent the sort of decision delivered in Bostock. However, as SCOTUS explained, any dictionary would define “male and female” as synonyms for “sex”. So, on a plain, literal interpretation, Jamaican LGBT citizens are protected from discrimination because of who we love or how we identify. And since our Charter rights can be enforced against private individuals as well as the state, we enjoy greater constitutional protections than citizens of many other countries worldwide, including the United States.

This is YUGE (with apologies), because as a gay man I have personally experienced multiple forms of discrimination in Jamaica from state and non-state actors. These include discrimination from:

  • The police when I went to report a death threat at the Freeport police station and the recording officer told me that he hates gays and we make him sick;
  • The Cornwall Regional Hospital while I waited to see my sick mom and the security guard at the ward said that gays were disgusting perverts;
  • My former employer at Air Jamaica, who told me to “stand in front of a mirror and try to act more macho”;
  • The Jamaica Supreme Court when a judge said that my being absent to look after my sick husband was not a valid reason that she could accept since same-sex marriage was not recognized in Jamaica;
  • A former landlady, who gave me notice to quit when she found out that I was gay;
  • The mayor of Montego Bay, who banned Pride events that I helped organize;
  • My former high school, Cornwall College, that refused to allow Montego Bay Pride to even paint a bathroom as part of our social outreach programme;
  • The Child Development Agency, which said I could not adopt a child because of my same-sex relationship;
  • Local TV stations that refused to air my ad calling for respect for the rights of homosexuals; and
  • Open Bible Church that dismissed me as a Sunday school teacher when I admitted to “struggling” with homosexuality.

There are likely many, many other instances of homophobic discrimination that I experienced over the years, but which I have no doubt subconsciously suppressed and/or forgotten.

And I am just one person. And I qualify as a privileged Jamaican.

Therefore, the experiences of other LGBT people in more challenging socio-economic situations are far worse and more numerous than mine.
Yet, as proud Jamaicans, we LGBT people love our country and we will continue claiming our rights to full citizenship in it. The ruling from the SCOTUS and the many others that preceded it will certainly aid in our cause for equality.

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Written by Maurice Tomlinson

Maurice Tomlinson of Jamaica and Canada has been involved in HIV and AIDS and LGBTI rights activism in the Caribbean for over 15 years. An attorney-at-law, he leads and supports legal challenges seeking the repeal of the region's homophobic laws. Contact him by email via 76crimes (at) gmail.com.

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