Thursday, April 25, 2013

Legal Notes - Homophobia and human rights abuses


Malene Alleyne

NOT in this Cabinet. Not in this Charter. Not in this country. This seems to be the sentiment in Jamaica towards Lesbian, Gay, Bisexual and Transgender (LGBT) persons. Indeed, LGBTs continue to experience discrimination on the basis of their sexual orientation and gender identity; intolerance is tolerated and discrimination seems to receive mild justification.

Sentiment aside, however, there can be no justification in law for this treatment. Jamaica has a positive obligation under applicable international human rights instruments to respect and ensure the human rights of all persons, including LGBTs. These obligations include, among other things, adopting laws that protect against discrimination and prevent or change discriminatory practices. Below is an overview of how LGBT discrimination is treated under national laws and of how these laws compare to international standards. This overview should be of importance to all Jamaicans since it concerns the subject of human rights, which is everyone's business.

The Constitution, as revised by the Charter of Fundamental Rights and Freedoms ("Charter"), guarantees the right to freedom from discrimination on the grounds of "being male and female" as well as "race, place of origin, social class, colour, religion or political opinions". This language is problematic in that it does not explicitly prohibit discrimination based on sexual orientation or gender identity. This is a significant departure from relevant international human rights instruments, which contain wider and more inclusive language.

Under the International Covenant on Civil and Political Rights ("ICCPR"), for example, each State Party has an obligation to ensure to all individuals the rights recognised in the ICCPR, without distinction of any kind such as "sex". The ICCPR also requires that national laws prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as "sex".

This category of "sex" has been interpreted by relevant jurisprudence as including gender identity and sexual orientation. The inclusion of this category is therefore legally significant. In fact, when Jamaica was revising its Constitution, the Constitutional Commission recommended that the revised Bill of Rights explicitly refer to discrimination on the ground of sex. The United Nations Human Rights Committee also expressed a hope that this recommendation would be implemented. The subsequent exclusion of this category in the revised Constitution therefore seems to be less of an oversight and more of a deliberate statement — not in this Charter.

Another constitutional guarantee of relevance to this discussion is the right to equality before the law. Equality is also enshrined in applicable international human rights instruments and is a fundamental principle in international law. In Jamaica, however, there are laws which are arguably discriminatory in their treatment of same-sex couples. An example that has received widespread attention is the Offences Against the Persons Act which criminalises the "abominable act of buggery." This law also punishes men who commit any "act of gross indecency" with another male in public or private.

Another example is the Property Rights of Spouses Act which effectively denies same-sex couples the property rights afforded to heterosexual couples due to the limited definition of "Spouse". Spouse, under this act, is defined as including "a single woman who has cohabited with a single man as if she were in law his wife for a period of not less than five years" and vice versa.

Based on the above, it seems that some of Jamaica's laws not only fail to guarantee to LGBTs equal and effective protection against discrimination, but also actively perpetuate discriminatory practices. Even if these laws can stand under the scrutiny of the limited language of the Constitution, they are still in breach of Jamaica's obligations under applicable international human rights instruments such as the ICCPR. It is important to state in this regard that, under international law, Jamaica has a legal duty to honour its treaty obligations in good faith. It should also be noted that under the Vienna Convention on the Law of Treaties, a State cannot use domestic law, including the Constitution, as an excuse for failing to honour its treaty obligations. Lastly, I would argue that the principle of non-discrimination is a norm of jus cogens under international law from which no derogation is permitted.

In conclusion, it is recognised that the scope of LGBT rights is a very sensitive topic in Jamaican society and that religious, cultural and moral views have played a central role in the debate. In fact, the beauty of living in a free and democratic society is that each person is free to form his/her own views on this controversial topic. However, from a legal standpoint, these views cannot be allowed to translate into actions that violate the human rights of any person. While cultural sensitivity is important, Jamaica is nonetheless bound by international human rights obligations which must be honoured as a matter of law. Most importantly, despite our fears or feelings, it must be remembered that human rights are fundamental, indivisible, universal and inherent to all human beings. In this sense, the human rights of LGBTs should be defended, not only because international law requires it, but also because human dignity demands it — in this Cabinet; in this Charter; in this country.

Malene Alleyne is an Associate at Myers, Fletcher & Gordon and is a member of the firm's Commercial Department. 

Malene may be contacted via malene.alleyne@mfg.com.jm or www.myersfletcher.com

This article is for general information purposes only and does not constitute legal advice

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