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In an historic moment for LGBT people in the Caribbean, the Inter-American Commission on Human Rights will deliberate on a case challenging Jamaica’s anti-buggery laws (which were inherited from the British).
Two LGBT asylum seekers, who fled the country due to violence and persecution, are bringing a case to the human rights court to attempt to get a ruling on whether it contravenes the American Convention on Human Rights (which Jamaica has signed).
Gareth Henry and Simone Edwards are challenging the 1864 Offences Against the Person Act, which criminalises consensual sexual activity between men. As part of the case, they also argue that the law legitimises violence against LGBT people and contravenes their human rights.
The Act makes illegal the ‘abominable crime of buggery’, as well as acts of ‘gross indecency’. The Act is a legacy of the Victorian norms and attitudes during the colonial period.
The Human Dignity Trust – a charitable organisation that supports local human rights defenders in challenging laws criminalising LGBT people – helped the pair submit their case to the Commission, in the hopes that the Jamaican government will then review and reform the existing law. The submission was made in 2012, but has only now been scheduled for deliberation.
The Inter-American Commission on Human Rights is part of the Organization of American States (OAS). It champions human rights in the American region and is headquartered in Washington, D.C. It will decide if the law is discriminatory and then make recommendations to Jamaican law-makers.
Its initial report acknowledged concerns about ‘violence and discrimination against LGBTI people and the impact of buggery laws.’
It added that, ‘[I]f proved, the alleged facts relating to threats to life, personal integrity, interference with private and family life, obstacles to the right of residence and movement, unequal treatment, lack of access to justice and judicial protection, and interference in access to health care, could establish possible violations of (…) the American Convention [on Human Rights].’
Téa Braun, Director of HDT said, ‘Laws criminalising sexual activity between two consenting adults in their own homes have no place in a society that values and protects dignity, privacy and equality. They only serve to foment discrimination and violence towards the wider LGBT community in Jamaica.’
He went on to say, ‘For that reason, the Commission’s decision to admit this case for consideration on its merits is hugely welcome. It is a significant step forward that we hope will eventually lead to a repeal of these discriminatory laws.’
Henry had to leave Jamaica to escape repeated attacks by gangs and police, and sought asylum in Canada in 2008.
‘I was forced to flee Jamaica in fear of my life simply because of who I choose to love,’ he said. ‘I am convinced that putting LGBT people in Jamaica outside the protection of the law leaves us vulnerable to violence and harassment.
‘I take heart from the Commission’s decision, and sincerely hope that it signals the beginning of meaningful change for our community.’
Edwards was shot multiple times in 2008 by two gang members. They attacked her outside her own home and also tried to kill her two brothers – one of whom is also gay. After the police failed to protect her and her family, she was granted asylum in the Netherlands.
She said, ‘I believe that the gang members who almost killed me and my brothers felt emboldened to do so by the very existence of these homophobic laws. One of the few family members I have left in Jamaica was even forced to leave his job because he was harassed merely for having gay and lesbian siblings.
‘Despite this, it’s a real boost to see that the Commission is taking our complaint seriously. It gives me hope that one day these outdated laws will be done away with, and I’ll be able to return to my homeland without fear of attack.’
The case is very timely. According to Jamaican LGBT rights organisation, J-FLAG, many LGBT people do not report crimes because they believe the authorities will not intervene or that police brutality will make the situation worse.
This case will go to a merits stage. The Commissioners will consider the legal arguments and make a finding as to whether the law contravenes the American Convention on Human Rights and the American Declaration on the Rights and Duties of Man.
The Inter-American Commission’s recommendations may include repealing the offending statute, taking additional measures to protect LGBT citizens, and making reparations. It will then be up to the Jamaican government which action it takes.