Commentary: Trinidad ruling clears way to overturn Jamaica’s anti-sodomy law

Jason Jones’ victory over Trinidad and Tobago’s anti-sodomy law brought me to tears. Among other things, it was a much-needed vindication of my decades of work and sacrifice for LGBT+ human rights across the Caribbean. I was so burned out by this work that I had to take a sabbatical for my mental health when I became suicidal. I was only persuaded to return after encouragement by an excellent Canadian lawyer, Douglas Stollery, as well as the unwavering support of the HIV Legal Network, and most importantly, my own son came out to me as gay. I am no longer fighting these laws just for myself but also for him and all young queer Jamaicans.

As part of my advocacy, I conducted a review of the anti-sodomy laws across the region and advised the leaders of Trinidad and Tobago’s LGBT+ movement that their law could be challenged. I was rebuffed both by the Trinidadian group as well as by a major British charity that received substantial funds from the UK government to challenge these laws. The UK group seemed to prefer to pursue easy wins that would continue their funding and avoided difficult cases like Jason’s. Both groups felt that the Trinidad’s law was insulated from judicial challenge by the constitutional Savings Law clause. In sum, this unique clause provided that laws were saved from court challenge if they were in force before the constitution came into force. Thankfully, Jason and his lawyers were not deterred. They doggedly fundraised and sought support elsewhere. And they scored a massive human rights victory for the entire 56-nation Commonwealth.

Similarly, when I filed my own case against Jamaica’s anti-sodomy law, I was shot down by local and international groups who should have naturally supported my case. Again, the argument was that the Jamaican anti-sodomy law cannot be challenged because of a Savings Law clause. This narrow analysis discounts my decades of legal practice and legal analysis. Even legal academics were skeptical and did not encourage my claim. This was beyond disheartening and showed a “tabulated legalism” devoid of legal imagination or innovation. Practicing law must also mean taking on tough cases, not just the low hanging fruit.

Jason’s victory reminds me that you have to pursue your sense of justice when others abandon you for political or financial reasons.

Jamaica’s law CANNOT be allowed to stand. This draconian edict, which was imposed during the darkest period of Jamaican colonization, sentences consenting men to up to 10 years in prison at hard labor. And in 2012 as a direct result of Christian evangelical lobbying the penalty was increased and now requires convicted gay men to always carry a pass or face up to 1 year in prison plus a J$1million (about CAD$9,000) fine for each offence of not having that pass! Besides the blatant violation of the human rights of LGBT+ Jamaicans, the law also contributes to the country having the highest HIV prevalence rate among men who have sex with men in the world: 32%.

Thankfully, the leading legal precedent in Jamaica on Savings Law Clauses is that ANY change in the “law” will opens it up for judicial review. Our law is often found in multiple pieces of legislation. It was therefore shocking when the Jamaican Supreme Court (which is actually our first instance court) found that although the punishment regime for the law had changed in 2012, they still felt that it was saved. Thankfully, Jason’s case should settle that point: a change is a change and the law is no longer saved. Full stop.

Now only Jamaica, St. Vincent, Grenada and Guyana retain these dreadful and harmful laws in the Western Hemisphere. The laws remain on the books because of the political cowardice of Caribbean politicians who are terrified to repeal them as they will face the wrath of powerful religious groups that control significant voting blocks. It is therefore naive to believe that any Caribbean government will repeal the law.

My case will be appealed to the Jamaican Court of Appeal hopefully next year and I expect it will then head to the UK based Privy Council which, like Trinidad remains our final court of appeal. Even though the Privy Council will be ruling on essentially the same law, because Jamaica and Trinidad have different constitutions, the cases have to be heard separately.

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I have already committed significant funds of my own to this fight but it is not nearly enough. Even with excellent pro-bon support there are still substantial costs as the government is joined by 11 religious groups in the case to oppose my challenge. This means that all the volumes of court bundles have to be copied for them as well! As ridiculous as this sounds, the costs are very real and oppressively so.

Now is the time for anyone interested in justice for Jamaican LGBT+ to get off the sidelines and support my case. Win or lose we will advance the jurisprudence for queer liberation. Please consider giving to the HIV Legal Network that is managing the funds for this case. Donations can be made HERE.