A constitution should provide a foundation of principles upon which the laws of a society are built. It should ensure, for all its constituents, the rights to equality before the law, and to dignity of the person.
Rights such as these are integral to the very foundation of this country. The birth of Jamaica as a modern nation occurred out of a history of oppression and colonialism that necessitated the claiming, by the disadvantaged black majority, of a new rule of law that idealised these two rights.
A Bill of Rights should seek to protect the inherent human identity from abuse. By this we mean that features which are inherently and innately a part of one’s identity ought not to be allowed to form the basis for discrimination or exclusion by others. The Jamaican Constitution currently protects against discrimination based on race, and it is now proposed that gender be included as a head of non-discrimination. We believe that sexual orientation also ought properly to be brought under the protective umbrella of the anti-discrimination clause.
What, then, is “sexual orientation”? Professor Edwin Cameron (now a Judge of the South African Constitutional Court) writes, at pp. 450 of the 1993 volume of the South African Law Times ([1993] S.A.L.T. 450):
“Sexual orientation is defined by reference to erotic attraction: in the case of heterosexuals, to members of the opposite sex; in the case of gays and lesbians, to members of the same sex. Potentially, a homosexual or gay or lesbian person can therefore be anyone who is erotically attracted to members of his or her own sex”.
The sexual orientation of a person does not merely refer to the preferred gender of one’s sexual partner. It speaks to the person’s individuality and personality – one’s notion and expression of self, social and emotional bonding, lifestyle and conduct.
The balance of scientific opinion is weighted in favour of the view that sexuality, including sexual expression, is indivisible from individual identity. More than thirty years ago the American Psychiatric Association announced that it would no longer consider homosexuality to be a pathology; after all, one’s sexuality is as much a fact of life as one’s race, or gender.
The notion of “sexual orientation”, therefore, is clearly neutral, and an anti-discrimination clause would protect all persons from injury to their person, property or interests on the basis of the fact or perception of their sexual orientation. Discrimination, or institutionalised prejudice, based on one’s sexual orientation is an issue that affects mainly the minority lesbian, gay and bi-sexual community.
In Jamaica, the law reflects a manifestly heterosexist worldview, illustrated not only by the absence of any kind of protection based on sexual orientation, but also by the criminalisation of male homosexual intimacy.
THE LAW
The Offences Against the Person Act prohibits “acts of gross indecency” (generally interpreted as referring to any kind of physical intimacy) between men, in public or in private. The offence of buggery is created by section 76, and is defined as anal intercourse between a man and a woman, or between two men. No force is required for the commission of the offence of buggery. Most of the prosecutions in fact, involve consenting adult men suspected of indulging in anal sex. To the best of our knowledge, a man and a woman engaging in consensual anal sex is seldom, if ever, prosecuted for buggery.Justice Albie Sachs of the South African Constitutional Court (SACC) who, on his recent visit to Jamaica, attended a special meeting with the Steering Committee of J-FLAG and other members of the gay and lesbian community, is reported, at para. 108 of the Judgement of the SACC in Case No. CCT 11/98, The National Coalition for Gay and Lesbian Equality (NCGLE) et al versus The Minister of Justice et al, as saying:
“It is important to start the analysis by asking what is really being punished by the anti-sodomy laws. Is it an act, or is it a person? Outside of regulatory control, conduct that deviates from some publicly established norm is usually only punishable when it is violent, dishonest, treacherous or in some other way disturbing of the public peace or provocative of injury. In the case of male homosexuality however, the perceived deviance is punished simply because it is deviant. It is repressed for its perceived symbolism rather than because of its proven harm. If proof were necessary, it is established by the fact that consensual anal penetration of a female is not [prosecuted]. Thus, it is not the act of sodomy that is denounced… but the so-called sodomite who performs it; not any proven social damage, but the threat that same-sex passion in itself is seen as representing to heterosexual hegemony.”
The social effect of these laws is that homosexuality is seen as perverse/ “bent”, not because of what the actors do, so much, but because of who they are – namely, homosexual men. Effectively, the buggery and gross indecency laws sanction discrimination against gay men, for being gay men.
Notwithstanding that there are no penal sanctions attending lesbian conduct, homosexual females are affected by the same taint as male homosexuals. Ironically, the best evidence of this is the fact that the Jamaican word for lesbian (i.e., sodomite) is actually derived from sodomy, the other word for buggery. And in socio-cultural terms – jobs, housing, general treatment – the Jamaican lesbian is just as discriminated against as her male counterpart, although she is less likely to face physical violence.
THE CONSTITUTION
The right to equal treatment before the law is entrenched in our current constitution, which also speaks to the right to privacy, as part of the legal framework for protection of the dignity of the person. Unfortunately, by virtue of the savings clauses at section 26 (8) and (9), which preserve laws that pre-existed the Constitution, the interpretation of these rights is, essentially, crystallised in pre-1962 law -both common law and statute law as it was transplanted from Britain. (Today, the British have rid themselves of laws such as the buggery law, which by virtue of our savings law clause remains constitutionally preserved here.)
We do not propose any ingenious interpretations to make the present Constitution progressive. We argue, simply, that the right not to be discriminated against by virtue of sexual orientation should be expressly and unequivocally propounded in any reformed Bill of Rights. This is the approach of the new South African Constitution (1996) which provides, at section 9(3):
“The state may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth.”
Our recent political history indicates the dangers of allowing ourselves to be led, legally and socially, by a tyranny of the majority. The bloodshed that has resulted from tribal politics over the past two decades graphically demonstrates the natural progression of intolerance for difference, particularly when supported by the force of might.
This type of intolerance is based on a fear that difference, particularly when it appears as a departure from norms, or “deviance”, may lead to a destruction of society as we know it. But this fear is totally unjustified. History is replete with challenges to various norms – racist, classist, sexist, even biblical norms – and such challenges have often-time contributed to, rather than detracted from, the development of mankind.
Nonetheless, we do not propose the removal of heterosexual norms in favour of homosexual ones – that would only create another type of homogeneity, with a different basis for discrimination in this regard. Furthermore, no amount of legislative activity could achieve that. What we propose, instead, is the development of a normative framework of law, which acknowledges, and ensures respect for, all types of differences – political, ethnic, cultural, religious, sexual, social, economic and physical.Justice Sachs, at para. 134 of the same case report mentioned earlier (NCGLE vs Min. of Justice) says, in relation to the SA constitution:
“What the constitution requires is that the law and public institutions acknowledge the variability of human beings and affirm the equal respect and concern that should be shown to all as they are. At the very least, what is statistically normal ceases to be the basis for establishing what is legally normative. More broadly speaking, the scope of what is constitutionally normal is expanded to include the widest range of perspectives and to acknowledge, accommodate and accept the largest spread of difference. What becomes normal in an open society, then, is not an imposed and standardised form of behaviour that refuses to acknowledge difference, but the acceptance of the principle of difference itself, which accepts the variability of human behaviour.”
As he explained in his meeting with the Jamaican gay and lesbian community, in arriving at this type of approach, the question for the framers of the South African constitution was, simply, what kind of society were they in the process of creating? If the intention was to create a truly plural society, which had learnt its lessons from a history of institutionalised oppression, there was no place for the exclusion of any recognisable constituency from the protection of the new constitution.
INTERNATIONAL HUMAN RIGHTS PERSPECTIVE
Broad-based anti-discrimination clauses are in keeping with prevailing international human rights standards. In 1994, the United Nations Human Rights Committee, under the Optional Protocol of the International Convention on Civil and Political Rights (ICCPR, to which Jamaica was, until recently, a signatory) had occasion to consider sections 122 and 123 of the Tasmanian Criminal Code, which is similar to our gross indecency law.
The Committee found that the provision violated articles 2 and 17 of the ICCPR which, respectively, prohibit discrimination and protect privacy. In response to government arguments that the legislation was designed to meet concerns about the spread of HIV-AIDS, the Committee declared that “the criminalisation of homosexual practices cannot be considered a reasonable or proportionate measure”, and noted that such legislation would only worsen the situation by driving (infected) homosexuals underground.
It also rejected Tasmania’s claim that “moral issues are exclusively a domestic concern” and interpreted “sex” in the non-discrimination clause of the ICCPR as including “sexual orientation”.
There are a growing number of countries that are being guided by these principles: Namibia and Ecuador have recently incorporated into their constitutions, clauses similar to section 9 (3) of the South African constitution, while Chile and Georgia (USA) repealed their sodomy laws just this year. The Netherlands and other European countries have always had progressive policies in this regard, even granting legal recognition to homosexual domestic partnerships.
As a country that relies so heavily on international aid and trade, and prides itself on being a leader in the Caribbean, Jamaica should seek to be at the forefront of these international trends. The European Union is considering including human rights conditions, with particular reference to gay rights and the death penalty, in any future aid grants to the Caribbean territories; we believe it would show both economic and political wisdom, to be pre-emptive in this regard. Otherwise, we might be forced into a position where we are seen as bowing to international pressure, and/or “selling out” our moral values.
SOCIAL ATTITUDES AND REALITIES
Jamaica’s intolerance of homosexuality is so acute that it has gained international notice, through the lyrics of gay-bashing songs like “Boom Bye Bye”, and the hostility to our gay visitors, which they have reported to international organisations like the International Lesbian and Gay Travel Association. It is not only the international gay community that has been incensed by such incidents, but also persons of heterosexual orientation who value human rights and justice. Some boast that intolerance towards the gay and lesbian community is “part of our culture,” and that protection of homosexuals from discrimination is, likewise, counter-cultural and even anti-nationalistic. But should bigotry and prejudice be perpetuated by constitutional silence, and endorsed by express legislative provisions?
In any event, it is precisely this intolerance, and its potential for harm, which creates the necessity for protection from discrimination, and so to rely on it for the opposite effect is very much like Caesar appealing to Caesar.
It is claimed that our homophobia finds its justification in the pages of the Bible, and particularly in the story of Sodom and Gomorrah, and the purity laws of Leviticus. While we recognise that established ethical and moral guidelines have certainly been influenced by the Bible and related biblical documents, we hold that the appropriation by legislatures of the Christian condemnation of homosexuals is a purely arbitrary process, guided largely by individual biases and collective prejudices. In the case of adultery, of which much more mention is made in Biblical text, Jamaica has no law pertaining to its condemnation or prosecution. The same applies to the act of fornication.
Furthermore, the Bible (or, rather, one or other interpretation of it) ought not to be a source of laws in a country whose constitution guarantees freedom of conscience/religion. In a non-theocratic society where the separation of Church and State has long been established, legal norms cannot be based on declarations of any one religious document. This is not to undermine the importance of the Church in the lived experiences of Jamaicans, but rather to encourage a less universalistic, more inclusive approach to the legislative process, one which recognises the variability of those lived experiences.
Mark Wignall, in his article “J-FLAG must cool down its homosexual heat” published in the Jamaica Observer of 21st December, 1998, captures the Jamaican attitude of revulsion and condescension towards homosexuals:
“Jamaicans expect homosexuals to be quiet as they indulge in their watchamacallit. Jamaicans expect them to be ashamed, remorseful, penitent and retiring. None of us want them to take their song and dance routine to the National Arena, or Jamaica House.”
It is precisely these types of stereotypical and derogatory comments that affect the ability of gays and lesbians to make their contributions to Jamaica national life. Despite the significant contribution of the gay and lesbian population to all areas of national life, but particularly in the professions and the arts, we are marginalised, victimised, abused – emotionally, verbally and physically – and even, sometimes, killed. Thus we are denied, in real terms, the basic rights of self-expression which heterosexuals take for granted.
How does this affect us? Justice Sachs answers this question so well in pares 127 and 128 of the NCGLE vs. Min of Justice judgement:
“In the case of gays, history and experience teach us that the scarring [of the sense of dignity and self-worth] comes … from invisibility. It is the tainting of desire, it is the attribution of perversity and shame to spontaneous bodily affection, it is the prohibition of the expression of love, it is the denial of full moral citizenship in society because you are what you are, that impinges on the dignity and self-worth of a group. …Gays constitute a distinct though invisible section of the community that has been treated not only with disrespect or condescension, but with disapproval and revulsion; they are not generally obvious as a group, pressurised by society and the law to remain invisible; their identifying characteristic combines all the anxieties produced by sexuality with all the alienating effects resulting from difference; and they are seen as especially contagious, or prone to corrupting others. None of these factors applies to other groups traditionally subject to discrimination…”
Any framework of laws that encourages this type of treatment of any section of the society, as apartheid did, is illegitimate and should not be supported or perpetuated. The changes we propose will not in any way detract from the rights of any person. Gays and lesbians, contrary to another popular stereotype, are not interested in “recruitment” of others to any cause. We are quite simply requesting the same rights and protections under law, which have already been afforded the majority of Jamaican society. Such inclusion, in effect, will only enhance the right of self-determination and self-expression for all citizens in this plural society. We are, after all, “out of many, one people”.
Gay Lesbian Bisexual Trans-gender & Queer Jamaica 