Jamaican court again rejects LGBT rights; Jamaican activist bows out

COMMENTARY: Maurice Tomlinson ends his Jamaican activism, salutes anyone who continues the fight for LGBT rights there

Once again Jamaican courts have ruled against recognizing the human rights of LGBT people. On Oct. 27 the Supreme Court upheld our country’s archaic anti-sodomy law, claiming that only Parliament could repeal this discriminatory edict. [The court’s ruling is here.]

This British colonially imposed statute condemns consenting gay men to 10 years in prison at hard labour for any acts of intimacy, even holding hands in the privacy of their bedroom. And upon their release convicted gays must also register as sex offenders and always carry a “pass” or face a nearly US$7,000 fine plus spend a year behind bars every time police catch them without said pass.

Similar laws are being struck down across the world, including in the Caribbean. And in two separate decisions the Western Hemisphere’s highest human rights tribunal, the Inter-American Commission on Human Rights, condemned Jamaica’s anti-sodomy law as being in violation of the country’s international human rights obligations. Not only has this law served as license for horrendous abuses against LGBT Jamaicans, including murder, it has also been directly linked to 1 in 3 Jamaican men who have sex with men (MSM) having HIV, the highest prevalence rate in the world. However, the state and the courts have ignored these damning facts in favour of prioritizing hate. Dreadful.

Over seven years ago I filed a constitutional challenge to this law with the support of the HIV Legal Network. I took up the matter after my previous client dropped the case because of death threats that he and his family had received. Like many gay Jamaicans, this brilliant young man subsequently left the island.

In a pathetic concession to the country’s powerful religious extremists, the court allowed nine church groups to join the case in support of the government’s position. However the judge rejected the Public Defender’s application to join and assist me. The court then allowed the government and churches to delay this case multiple times, even though constitutional claims like mine are required to be heard quickly.

Despite this shameful start, as an attorney I believed that our courts would still protect vulnerable LGBT people like me against the tyranny of the majority. Yet, time and again our judges have hidden behind politics and public opinion to rule against LGBT inclusion. For example, the Court of Appeal upheld a ban on a TV ad that called for respecting the rights of gays. The same court also overturned a decision that would have allowed Montego Bay Pride to use a public venue.

And even more egregious, the court refused to allow a full hearing about the human rights violations caused by the anti-sodomy law. Instead the judges limited my case to one narrow technical point — whether the law was constitutionally “saved” from judicial review [because it existed before the 2012 Charter of Fundamental Rights and Freedoms took effect]. However, our constitutional law has long required that limitations on rights, such as the “savings law clause”, must be narrowly interpreted, and human rights provisions must be given a generous and liberal interpretation. Nevertheless, the court ignored these clear constitutional priciples in what I consider to be a supreme act of judicial cowardice.

I am Jamaican by accident of birth. But like the victim of an abusive relationship, I have struggled to remain faithful to my country despite suffering multiple attacks. I naively kept hoping that my homeland would one day live up to its motto: “Out of Many One People.” However, it is now painfully clear that my dream of inclusion has been a nightmare, and I am unabashedly unwanted.

Thankfully, I have options and I will exercise them. This means distancing myself from the country. I now live in Canada, where I was forced to flee after multiple death threats that I received because of my same-sex marriage. I am thankful that I now live in a country where my life and love are not criminalized.

See Also

Links between Ugandan and U.S. hate groups are clearer than ever

Some may suggest that I use my privilege and continue the work for change in Jamaica. To those persons I say, please check your own privilege. If your rights to live and love have never been the subject of lengthy acrimonious public debate, or the courts have not repeatedly trampled on your rights, or you have not received death threats that the police refused to investigate, or you have never had a bomb threat at your home, then respectfully, you are not qualified to speak. Because I have endured all this and much more while other LGBT Jamaicans have paid with their lives for daring to exist.

Ironically, while there are multiple credible reports of Jamaican churchmen raping and pilfering their congregants, the biggest national threat that most Jamaicans perceive is what consenting adults do with our private parts. So much so that our Parliament sought to entrench the ban on same-sex intimacy in our constitution. Ridiculous.

I see little hope of justice for LGBT people from Jamaican courts. Also, the political movement for inclusion faces steep odds. The last public poll showed that over 90% of Jamaicans are homophobic, largely because of fundamentalist Christian ideology imported from North America.

May those who choose to continue the LGBT liberation struggle eventually have success. Meanwhile, I will remain where I am wanted in Canada. Here I now work as a nurse, caring for other bruised and battered people. I try to ease or stop their pain, even while I hope to eventually put an end to my own.

Jamaica, farewell.