A more just vision of sexual orientation

chopped gay man 42 times; freed by CJ Sharma
Marvin Marcano: chopped Christopher Lynch 42 times, freed by CJ Sharma

Just a few years ago, the courts in Trinidad & Tobago were not a  place GLBT people looked to with much hope of justice on matters of sexual orientation. Some of you can remember the feeling in your stomach the day your heard or read about then Chief Justice Satnarine Sharma’s 2002 verdict releasing back onto the street a man who’d been previously charged with murder and who had taken a Chinese chopper over 40 times to a gay man, splitting his skull and chopping his face open—and had been sentenced to hang for it. Marvin Marcano and a friend, both teenagers at the time, had shared drinks and watched TV with 58-year-old Christopher Lynch before something sexual triggered the violence. Margot Warner who retired recently and Wendell Kangaloo, still on the Appeals Court bench, joined CJ Sharma’s judgement. Whatever the issues of procedural fairness in the trial, there was no forgiving what Sharma read from the bench about a homosexual advance providing justification for such a crime: “The acts themselves were so unnatural that they would have caused a certain reaction,” he said.

But the Court may be changing. Three new justices are about to join the Appeals bench, Humphrey Stollmeyer, Gregory Smith and Rajendra Narine. Sat Sharma left the CJ role under a cloud, and Trinidad & Tobago now has its youngest Chief Justice in history, Ivor Archie, a man who from all appearances has a living, 20/20 vision and understanding of sexual orientation.

gspottt shared with you that across the Commonwealth a network of human rights experts, lawyers and activists has been strategizing and working together to bring an end to the remaining colonial-era buggery laws that we inherited from the mother country, one by one. Most recently Section 377 of India’s penal code was overturned in the courts.

In this final item in our Emancipation Day human rights series, we share excerpts from the 2006 judgment (Suratt v AG, CA 64/2004) penned by Ivor Archie on the constitutionality of the Equal Opporunity Act (EOA), and its deliberate attempt to exclude sexual orientation from the protections it offers against discrimination. Human rights lawyer Anand Ramlogan calls it “one of the best judgments written by a local judge”:

“The EOA is an unusual and contradictory statute since it appears to regard ‘sex’ and ‘gender’ as having an identical meaning that is different from ‘sexual orientation’ or ‘sexual preference’. That is the only explanation for the fact that by the definition of ‘sex’ in section 3 it specifically excludes from its protection persons who claim discrimination on the basis of sexual preference or orientation, while at the same time purporting, in section 7, to proscribe certain acts motivated on the basis of ‘gender’. The current usage of those expressions, as may be revealed from an examination of any reputable dictionary, is that while the word ‘sex’ is generally understood to refer to the biological division of species between male and female in respect of reproductive roles, the concept of ‘gender’ is broader and is more of a social, cultural and even psychological construct. In other words, ‘gender’, although it is nowhere defined in the EOA, can include ‘sexual orientation’.

This may not be a fact that is palatable to most persons in Trinidad and Tobago where homosexual acts are generally disapproved and are still subject to criminal sanction, but orientation or preference is not the same as behaviour. I say this with the greatest of deference to the learned trial judge who undertook a very detailed and sensitive analysis of this point. It is not a crime to have a homosexual or lesbian orientation. In fact there is no evidence, at least in this case, that one can choose an orientation although there are those who argue that the sex towards which one’s romantic or sexual desires are focused is more a matter of ‘choice’ or ‘preference’.

It is not for this court to resolve that debate, but it is axiomatic that all legislation has to be construed and applied so as to remain in conformity with the Constitution and in particular the guaranteed rights to equality of treatment and equality before the law under section 4 of the Constitution. To the extent that the EOA is inconsistent with the Constitution it is void. In respect of the exercise of statutory powers, the authorities are clear that, in the absence of some compelling justification, it is unreasonable for a decision-maker to reach a decision that contravenes  or might contravene fundamental rights. Similarly, any law that is on its face discriminatory has to be justified on the basis of some reasonable distinction between those who are differently treated, otherwise it offends against section 5 of the Constitution. Sexual ‘preference’ or ‘orientation’ cannot, by itself, afford such a distinction. In any event, how does one determine such a thing unless it is self-confessed? It is a subjective distinction based on prejudice and stereotyping with no countervailing factors to justify it.

Ivor Archie could serve as Chief Justice for 16 years
Ivor Archie could serve as Chief Justice for 16 years

The effect of specifically excluding a particular category of persons, on the ground of sexual orientation, from the protection afforded by the EOAeg.nar.o.an.of.sno.itc.es to others, is to deny them a fundamental right on a basis analogous to one of the grounds enumerated under section 4 of the Constitution (i.e. ‘sex’). It is a denial of the protection of the law and of equality of treatment under the law. The flaw in the appellant’s argument lies in the conflation of orientation with actions. It is revealed in the reasons of the trial judge in the following passage.

‘Legislative intent and policy in Trinidad and Tobago, unlike in Canada and in the U.K., is to continue to treat homosexuality as a very serious criminal offence and it would be contrary to public policy to vest rights in individuals which stem from their condonation and practice of what the legislature has deemed to be serious criminal offences…’

It is a fallacy to assert that any real or claimed rights may stem from one’s sexual orientation. No one can seek special protection on the basis of his orientation. The fundamental rights are aptly so called because they arise from our inherent dignity and value as human beings.

In treating with the arguments in this way, it should not be assumed that I am accepting without question the proposition that it is justifiable for anyone, and more particularly for the State, to discriminate against anyone in relation to employment, education or the provision of goods and services purely on the basis that they have committed a criminal act, to wit, a homosexual act! It would be double punishment to deny a person access to the things enjoyed by other members of the community in addition to the severe criminal sanctions that his behaviour would attract. The EOA is invidious because in respect of criminal behaviour, it is generally accepted that once one pays one’s debt to society, it is over. A conviction for a homosexual act would presumably be established proof of one’s orientation and leave the unfortunate convict vulnerable to ongoing discrimination. Even prisoners have constitutional rights of which they are not to be unjustifiably denuded.

While it is understandable that a conviction or even an orientation may be a relevant consideration for certain types of employment, the general nature of the discrimination that the EOA permits is unjustified and unconstitutional.”

The judgement, which was ironically joined by then Chief Justice Sharma and Justice Alan Mendonca, was subsequently overturned by the Privy Council in October 2007, and the EOA ruled constitutional. The Privy Council judgement did not touch on any of the sexual orientation arguments here.

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