In Jamaica, government employees have more protection from discrimination than the general public whom they serve.
In 2004, the Staff Orders for the Jamaican Civil Service (which have the force of law) were revised. Quietly and without fanfare, this update from the 1976 document expanded the protections of public servants to include the right to non-discrimination on the ground of sexual orientation (s. 13.1.9). This created an anomaly where government employees had more protections from discrimination than the general public whom they were meant to serve.
It was therefore reasonable to expect that in 2011 when the country adopted a new Charter of Fundamental Rights and Freedoms the grounds for non-discrimination would be expanded to include sexual orientation. Regrettably, the Parliament caved to fear-mongering by fundamentalist evangelicals (some from the global north) and created a closed list of grounds for non-discrimination, which specifically excluded homosexuals.
Upholding the rights of all citizens
This situation did not stop the Constitutional Court from ruling in 2013 that gay Jamaicans are still covered by the Charter. In the case of Tomlinson v. TVJ et. al., which AIDS-Free World brought to challenge the refusal of local TV stations to air an ad promoting tolerance for gays that the organization had produced, the President of the Court said:
“It is perhaps to be recognized that the claimant cannot seek redress for any allegations of discrimination on the grounds of his sexual orientation as the Charter does not afford that protection specifically. This may be viewed as a significant deficiency in this Charter but it is to noted that the first paragraph of the Charter [which declares that the state and private individuals are obligated to uphold the fundamental rights and freedoms of all citizens] is comprehensive enough to point to a view that it be interpreted to embrace all rights and responsibilities of all Jamaicans.” (para. 28)
Sometimes you have to lose to win
So, although the court ruled against the right to air the ad, this very useful dicta clarifies that the Charter does in fact protect gays. The extent of this protection will certainly have to be “teased out” in subsequent cases, but this judicial statement is a very promising start. Sometimes you have to lose to win.
The Caribbean’s highest court, the Caribbean Court of Justice (CCJ), also recently opined on anti-gay laws in a case that originated from Jamaica and which was again brought by AIDS-Free World.
In Tomlinson v Belize and Trinidad and Tobago, the unanimous 5 panel bench said that:
“In relation to homosexuals, there is indeed international case law, in particular jurisprudence of the European Court of Human Rights and the UN Human Rights Committee which suggests that under certain circumstances the mere existence of legislation, even if not enforced, may justify a natural or legal person to be considered a victim of a violation of his or her rights under an international human rights instrument.” (para. 6)
Harm even from unenforced laws
The fact that the region’s highest court took judicial notice of the harmful impact of unenforced laws that discriminate against homosexuals will be significant in the ongoing Jamaican cases, which are challenging the British colonially imposed anti-sodomy law.
Sections 76, 77 and 79 of the 1864 Offences Against the Person Act criminalize private consensual adult same-gender intimacy between men and imposes a maximum sentence of 10 years imprisonment with hard labour. Apart from the direct invasion of the right to privacy created by this statute, it also provides licence for a host of other egregious human rights violations against LGBTI Jamaicans, which has earned the country the unenviable reputation as one of the worst places in the western hemisphere, if not the world, to be gay.
In seeking to strike down this law, while simultaneously working to dispel the homophobic myths being spun by the right-wing evangelicals, Jamaican LGBTI activists and their allies are inching the country towards legal, and social equality. The process will be incremental, but it is certainly inevitable.