NUMEROUS viewpoints have been expressed on the matter of homosexuality and the Jamaican buggery law since it was first mentioned in the political leadership debate leading up to the December 2011 general election.
Supporting and opposing viewpoints have included the notion that the church is picking on gays, that some personal rights can be sacrificed for general public morality, that we are irrational and selective in how we deal with minority groups in our society, and that we should tackle homosexuality through moral suasion rather than through the criminal law.
These approaches generally coalesce around the concepts of religious morality, human rights and justice as fairness. However, there are more fundamental issues to be considered before we form our opinions or make decisions based on morality or legal grounds.
The matter of human sexuality
Human sexuality speaks to how people experience the erotic and express themselves as sexual beings; how they express love and their connections to other human beings. Sexuality is fundamental to being human, and it includes at least five different elements: sex, gender, affective/emotional relationships, eroticism, and reproduction.
It is expressed and experienced through thoughts, fantasies, desires, beliefs, values, attitudes, activities, practices, roles and relationships (PAHO/WHO, 2000). As human beings we are assigned a ‘sex’ at birth based on the physical appearance of our external genital organs. We are defined as either ‘male’ or ‘female’, although one in every 2,000 infants is born with genitalia that is ‘in-between’ or ‘intersex’ (the word that has replaced the old term hermaphrodite).
No determination is made at birth of the chromosomal sex (genetic sex) of the newborn — whether XX (female) or XY (male) genotype in the somatic cells, or any other chromosomal expression. No determination is made of the gonadal sex (tissue present in the gonads — ovaries or testicles), and the assignment of a baby’s sex is based only on the external appearance of the phenotypic sex (the manifestations of sex as determined by endocrine influences).
‘Sex’ and ‘gender’ are similar but not the same. Sex refers to the anatomical organs as they appear to us at birth. Gender is a social construct that varies from one society to another, and is about various societies’ expectations of us based on our biological sexual characteristics (World Health Organisation – WHO).
Gender socialisation begins the moment we are born, based on the appearance of our external genitalia, and specific expectations about how we should behave and what we should or should not do begin at that time. What is expected of us as a boy or girl (no ‘in-between’ is allowed) — whether we cry too much or not, how big we are or how small, how pretty we are or not, or how aggressive we are, and so on.
This social construction and expectation is very powerful, and people treat gender roles as if they are inevitable and a product of ‘nature’. Is it inevitable that women cook meals while men sit and wait to be fed, or women mop and wash clothes while men watch TV? As men or women, specific behaviours are expected and society does not expect a man to behave like a woman or a woman to behave like a man! Worse — no ‘in-between’ is tolerated!
And so gender and gender roles are learnt, and these vary from one society to another. In contrast, however, is the matter of gender identity. This is the degree to which, in growing up, each person identifies as male, female, or ‘in-between’. It is an internal subjective framework that is constructed over time, and subjected to many influences — internal and external — which enables each person to organise a concept of ‘self’ and to perform socially in regards to his or her perceived sex and gender.
It is during this phase of development that persons psychologically perceive themselves to be male, female, bi-gender, or trans-gender. Trans-gender is a ‘continuum’ term for persons whose gender identity and expression does not conform to the norms and expectations traditionally associated with the sex assigned to them at birth.
Persons may also have masculine features, feminine features, androgynous (male and female) features, and a complex interaction of sexual attractions. And so as a society, we need to understand the background to our development and socialisation as human beings, in order to comprehend how a person born with anatomical organs that we judged at birth to be male could grow up with female gender identity, or vice versa, or ‘in-between’. Hence ‘tolerance’ of difference must be the order of the day!
The current law against buggery
When we view these issues against the current law on our books against buggery (and similar laws), we can understand why many persons are arguing that our laws be updated to include our current understandings of our social and physical development as human beings.
Let us now look at some of the implications of the current Jamaican law against buggery. To enforce it, we have to peer into people’s bedrooms and, if this is done, it has the potential of incarcerating a large portion of our adult population (both men and women) — prison space we can ill afford at this time.
Why is this possible? Because the buggery law prohibits anal intercourse. Full stop! It says nothing about sex between two men. So if a husband decides to have anal sex with his wife in the course of their love-making, or any man with his partner — they can be thrown in jail!
Now, would it be only the husband that would go to jail (he did the penetrating), or would the consenting wife be also incarcerated? It takes two to do the buggery act. What would be the welfare of their young children left at home when their parents are carted off to jail? What about the ensuing embarrassment?
These are just some of the possible implications of the current buggery law ‘on our books’. Are members of our society aware of all these implications? Shouldn’t we be talking about them? Why shouldn’t we review our buggery law at this time? Should we maintain the current level of injustice, simply because some persons fear a slippery slope?
The ethical answer to slippery-slope possibilities is not the denial of basic human rights, but rather moving to a just position and holding firm at that position.
Dr Derrick Aarons JP, MD, MSc (Bioethics), PhD is a Consultant Bioethicist, Palliative Care and Family Physician providing specialist advice in ethical issues in Jamaica and the Caribbean, and is a member of the Executive Council of RedBioetica UNESCO.