LGBTI people in four Caribbean countries over the last year have filed lawsuits against their nations’ colonial-era sodomy laws.
Javin Johnson and Sean Macleish on July 26 filed a lawsuit against two laws in St. Vincent and the Grenadines that criminalize consensual same-sex sexual relations.
Daryl Phillip, founder of Minority Rights Dominica, and Maurice Tomlinson, a senior policy analyst at the Toronto-based HIV Legal Network, on July 18 announced a gay man who remains anonymous filed a lawsuit against Dominica’s sodomy law.
Alexa Hoffmann, a transgender activist in Barbados, along with a gay man and a lesbian woman on June 6, 2018, filed a lawsuit against their country’s sodomy law with the same commission. Tomlinson, who was born in Jamaica, in 2015 challenged his country’s sodomy law before the Jamaica Supreme Court.
The commission on July 15 sent a letter to Barbados’ government that said it has three months to respond to the lawsuit. The Jamaican government received a similar letter three days later in response to a lawsuit that Tomlinson filed against the country’s same-sex marriage ban in 2018.
“The anti-sodomy law and serious indecency law in Barbados serve no purpose other than to foster alienation and marginalization against LGBT people,” Hoffmann told the Washington Blade on Tuesday on Facebook Messenger. “Any person who has anal sex, oral sex, engages in mutual or other masturbation or sexually interacts with another consenting adult, even in private, is legally branded a criminal, and the social implications are nothing nice, to say the least.”
Macleish told the Blade on Tuesday during a telephone interview from Chicago where he has lived for more than 30 years that his case “is very personal to me because of my experiences being gay in St. Vincent” with “all of the homophobia and discrimination that I experienced there.” Philip in a press release that announced the Dominica lawsuit echoed Hoffmann.
“Brutal and often life-threatening experiences are a daily reality for many LGBT people in Dominica, and elsewhere in the Caribbean,” said Philip. “Because the law criminalizes all LGBT individuals, it sends a powerful message that other people — whether law enforcement or regular citizens on the street — are entitled to discriminate and commit human rights abuses against LGBT individuals.”
Dominica, St. Vincent and the Grenadines, Barbados and Jamaica are among the handful of English-speaking Caribbean countries in which consensual same-sex sexual relations remain criminalized.
The government of Trinidad and Tobago has appealed a 2018 ruling that declared the country’s colonial-era sodomy law unconstitutional. Tomlinson said an appeal of the Belize Supreme Court’s 2016 decision that struck down the Central American country’s sodomy law is pending.
The Dominica lawsuit was filed in the country’s High Court of Justice, while Johnson and Macleish brought their case before St. Vincent and the Grenadines’ High Court.
The Caribbean Court of Justice — which last November struck down a Guyana law that criminalizes cross-dressing — would consider an appeal in the Dominica case. The Privy Council in London would consider an appeal in the case from St. Vincent and the Grenadines.
The Inter-American Court of Human Rights, which the Organization of American States created in 1979, enforces provisions of the American Convention on Human Rights that Barbados recognizes.
The court in 2018 issued a landmark ruling that recognizes same-sex marriage and trans rights. It also ruled in favor of Karen Atala, a lesbian judge in Chile who lost custody of her three daughters to her ex-husband because of her sexual orientation, in 2012.
“We expect a complete victory there,” said Tomlinson, referring to the Barbados case.
He added he also remains optimistic about the St. Vincent and the Grenadines case. Tomlinson told the Blade the rulings from Trinidad and Tobago and Belize, along with recent decisions against colonial-era sodomy laws in India and Botswana, will influence the English judges who sit on the Privy Council.
“I don’t think there will be any fear that they will be regressive,” he said.
Tomlinson told the Blade his case “presents a little unique challenge” because Jamaica’s constitution appears to preserve laws that were in place before the country’s Charter of Fundamental Rights and Freedoms took effect in 2012. He said he is arguing this provision does not apply to the sodomy law because a provision that penalizes registered sex offenders without a pass with a $9,000 fine and a year in prison came into force that year.
“The cases all have different apex courts,” he said. “The issue is how these different courts view LGBT rights and the countries also have different constitutions, so the issue will then will be how the constitutions interpret LGBT rights.”
Tomlinson also noted Caribbean politicians “have taken a hands-off approach” to the lawsuits.
“Truth be told we suspect that every politician in the Caribbean wants these laws to be struck down via court action so they have political cover,” he said, noting potential criticism they will face from religious conservatives. “They’re cowards, so they don’t want to do it themselves because of the potential of blowback, but they’re happy that it’s being done this way.”