Support the Inclusion of Sexual Orientation as A Protected Category Against Discrimination
In The Jamaican Constitution
The International Gay and Lesbian Human Rights Commission (IGLHRC) Action
Alert:
The Jamaican Parliament is discussing amendments to the current bill of rights of their
Constitution. This process is open to the addition of new rights and protection for
citizens.
The current constitution Sec 24(3) specifically makes it unconstitutional for
discrimination that is based on race, place of origin, political opinions, colour or
creed, and it is now proposed that gender be included as a head of non-discrimination.
In this context, J-FLAG (Jamaican Forum of Lesbians, All Sexuals and Gays) has
submitted a proposal for the inclusion of sexual orientation as a protected category. Such
an addition would grant to gays, lesbians and all sexuals the same rights and protections
under law, which have already been afforded to the majority of Jamaican society and, in
the end, will enhance the right of self-determination and self-expression for all citizens
in the plural society that Jamaica is proud to be.
But, given the fact that male homosexual intimacy is currently criminalised in Jamaica,
the need for such an inclusion becomes even more urgent. 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. Most of the prosecutions in fact, involve consenting adult men
suspected of indulging in anal sex.
The right to equal treatment before the law is entrenched in Jamaican 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, crystallized 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 the savings law clause remains
constitutionally preserved in all English speaking Caribbean countries, with the exception
of Bahamas where buggery laws were repealed in 1991 and replaced by sanctions to "sex
acts committed in public places".
If protections against discrimination based on sexual orientation are included in the
Constitution, buggery laws could be denounced as unconstitutional and then repealed, as
happened in the past in countries like South Africa and Ecuador.
IGLHRC supports J-FLAG's struggle towards a Jamaican new Constitution that- as a
foundation of principles upon which the laws of a society are built- would ensure, for all
its constituents, the rights to equality before the law, and to dignity of the person.
Please write to the following Jamaican authorities to show your support for the J-FLAG
submission.
(Note: State Ministers are also members of the Parliament in Jamaica)
Prime Minister
The Rt. Hon. P.J. Patterson, Q.C.
1 Devon Road, Kingston 10
Jamaica
Fax: (876) 929-0005
Email: cablib@cwjamaica.com
Minister of National Security and Justice
Hon. K.D. Knight
20 Oxford Road
Mutual Life North Tower
Kingston 5
Jamaica
Email: webmaster@mnsj.gov.jm
Fax: (876) 906-1724
Minister of Education and Culture
Sen. The Hon. Burchell Whiteman
Email: edpersec@cwjamaica.com
Fax: (876) 967-1887
Minister of Health
Hon. John Junor
Email: junorj@MHO.Gov.JM
Please send a copy of your letter to:
Jamaican Forum of Lesbians, All Sexuals and Gays
P.O. Box 1152, Kingston 8, Jamaica
Email: jflag@hotmail.com
In your letter, you might like to highlight one or more of the following points:
* 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. It would protect all persons from injury to their person,
property or interests on the basis of the fact or perception of their sexual orientation.
* Intolerance for difference 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. With the proposed amendments, the new Jamaican Bill of Rights would stand as a
normative framework of law, which acknowledges, and ensures respect for, all types of
differences - political, ethnic, cultural, religious, sexual, social, economic and
physical.
* 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 local activists
and IGLHRC's knowledge, a man and a woman engaging in consensual anal sex is seldom, if
ever, prosecuted for buggery.
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.
* Stereotypical and derogatory comments -fostered by the impunity that buggery laws
help to create-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, they are marginalised,
victimised, abused - emotionally, verbally and physically - and even, sometimes, killed.
Thus they are denied, in real terms, the basic rights of self-expression which
heterosexuals take for granted.
* 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 the Jamaican Gross Indecency Law.
The Committee found that the provision violated articles 2 and 17 of the ICCPR which,
respectively, prohibit discrimination and protect privacy. 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, Switzerland, Canada and Ecuador have recently incorporated into their
constitutions, clauses similar to section 9 (3) of the South African constitution -that
specifically mentions sexual orientation as a protected category-, while Chile and Georgia
(USA) repealed their sodomy laws in 1999.
----------------------------ABOUT IGLHRC -------------------------
The International Gay and Lesbian Human Rights Commission (IGLHRC), founded in 1991, is
a San Francisco-based non-governmental human rights organization. IGLHRC's primary work is
to monitor, document and mobilize responses to human right abuses against lesbians, gay
men, bisexuals, transgendered people, people with HIV and AIDS, and those oppressed due to
their sexual identities or sexual conduct with consenting adults.
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