here is an excerpt from the REPORT OF THE JOINT SELECT COMMITTEE ON ITS DELIBERATIONS ON THE BILL ENTITLED AN ACT TO AMEND THE CONSTITUTUTION OF JAMAICA TO PROVIDE FOR A CHARTER OF RIGHTS AND FOR CONNECTED MATTERS – July 20, 1999.
view the full PDF report here
here we are ten years later and nothing much has changed see former Prime Minister Edward Seaga’s take Charter of Rights/dynamics of development (Part 11) many others are worried about the so called loopholes in the proposed charter that would make “homosexuality” too out there.
Discrimination on the grounds of sexual orientation
Another issue raised was whether the Constitution should also guarantee freedom from discrimination on the ground of sexual orientation. This issue was raised, in written presentation and by oral address to the Committee, by a group called the Jamaican Forum for Lesbians, All-Sexuals and Gays (J. Flag). The written presentation is attached as Appendix 5. Representatives of J. Flag quoted what was said to be a statement by Professor Edwin Cameron, now a Judge of the South African Constitutional Court, at page 450 of the 1993 volume of the South African Law Times, that “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”.
They argued that the Constitutional Bill of Rights and Freedoms should seek to protect the inherent human identity from abuse and that what was included in human identity were those features of a person, or characteristics, that that person was born with. Sexual orientation, they said, was one of those features or characteristics of human identity, in the sense that everyone has a sexual orientation and that that sexual orientation was largely, if not entirely, outside the individual’s control. Homosexuality, they said, was, to the homosexual, as natural and unchangeable as heterosexuality was to the heterosexual.
The balance of scientific opinion, they argued, was weighted in favour of the view that sexuality, including sexual expression, was indivisible from individual identity, and was in the same category as race, gender, or brown or blue eyes. Furthermore, they said, there was no credible evidence or convincing argument that sexual orientation could be changed. On that basis, the representatives of J. Flag argued that sexual orientation should not form the basis of discrimination against, or abuse of, any human being and proposed that the best way to achieve this was to include, in the Constitution, provision for protection against discrimination on that ground. That proposal, they added, was consistent with current international trends.
The Constitution of South Africa, it is to be noted, includes sexual orientation among the grounds on which the state and persons are prohibited from unfairly discriminating directly or indirectly against anyone. The Committee is concerned, however, as to the effect which implementation of that proposal would have in relation to the Marriage Act and the institution of marriage and on parenting. The representatives of J. Flag had themselves conceded that the Marriage Act would be inconsistent with such a constitutional provision. Other matters which the Committee has taken into account include the view of some of its members that the proposal by J. Flag challenges Christian society, and that, as heterosexuality is what assures the perpetuation of the human race, homosexuality could be regarded as a challenge to the existence of the human race.
These views, of course, are not shared by the representatives of J. Flag. It is important to record that the representatives of J. Flag have stated that they regard the legislation which criminalizes buggery between persons as the essence of discrimination against homosexuals, particularly in relation to its enforcement against male homosexuals, and, therefore, that if a recommendation for the repeal of that legislation in relation to consenting adults in private is as far as the Committee would be prepared to go, they would be grateful for that concession.
The Committee urges J. Flag to carry out further research as to
(i) the Constitutions which guarantee protection against discrimination on the ground of sexual orientation;
(ii) the laws which would be inconsistent with such a constitutional provision;
(iii) scientific data as to the causes of homosexuality;
and (iv) whether there has been an increase in homosexuality following on such a liberalization of the law in other countries.
The Committee is not at present disposed, however, to include in the Charter of Rights a guarantee of protection from discrimination on the ground of sexual orientation, because of the implications which this would have, in particular, its implications in relation to the institution of marriage and questions of parenting. It would, however, bring to the attention of the Government, as a matter for consideration, the issue of the repeal of the provisions of the Offences Against the Person Act in so far as it relates to the offence of buggery between consenting adults in private.