Last edited: July 11, 2004

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preserved in all English speaking Caribbean countries, with the exception of Bahamas where buggery laws were repealed in 1991 and replaced by sanctions to "sex acts committed in public places".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
Fax: (876) 929-0005

Minister of National Security and Justice
Hon. K.D. Knight
20 Oxford Road
Mutual Life North Tower
Kingston 5
Fax: (876) 906-1724

Minister of Education and Culture
Sen. The Hon. Burchell Whiteman
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

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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