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. Continue reading “A more just vision of sexual orientation”

Emancipation time?

Will GLBTs be heard at CHOGM?
Will GLBTs be heard at CHOGM?

On human rights for gays, T&T makes great promises abroad and breaks them at home. Will November’s Summit help bring gay rights home?

by Colin Robinson

We all remember the recent crackdown on citizens’ free speech and assembly in order to make the country safe for visiting foreign leaders during April’s OAS summit. And Prime Minister Manning in a rare appearance in the Senate in July said that the upcoming Commonwealth Summit would prevent the country from holding local government elections before November.

Are our leaders more focused on pappyshowing for an international audience than doing the right thing by us here at home? On the question of sexual orientation and human rights, that certainly seems to be the case.

In one of the steps that facilitated CAISO’s formation last month, at the end of 2007 Trinidad & Tobago became part of a hemispheric coalition of  NGOs working through the InterAmerican/OAS human rights system to strengthen the enjoyment of human rights and equality by Lesbian, Gay, Bisexual, Transgender, Transsexual and Tranvestite and Intersex (LGBTTTI) people. Mulabi in Buenos Aires serves as the Coalition’s Secretariat; and Global Rights in Washington DC is a key partner.

Look out for Angela's report on the trip, coming soon
Look out for Angela's report on the trip, coming soon

Local GLBT groups agreed to collaborate informally to maintain T&T’s seat in the coalition. So when we were invited to participate with 23 other NGOs from 16 countries in meetings around the Organization of American States (OAS) 39th General Assembly in San Pedro Sula, Honduras last month, Velvet Underground founder Angela Francis agreed to represent us.

In San Pedro Sula, the NGOs met with and lobbied countries’ representatives to the OAS. They were successful in getting the Assembly, including Trinidad & Tobago and every other country in the Caribbean, to unanimously adopt the following resolution:

20090611oas
R to L: Angela Francis, Namela Baynes-Henry (Guyana), OAS Secretary General Jose Miguel Insulza at the civil society dialogue in San Pedro Sula

AG/RES.  2504 (XXXIX-O/09) HUMAN RIGHTS, SEXUAL ORIENTATION, AND GENDER IDENTITY (Adopted at the fourth plenary session, held on June 4, 2009)

THE GENERAL ASSEMBLY,

BEARING IN MIND resolution AG/RES.. 2435 (XXXVIII-O/08), entitled “Human rights, sexual orientation, and gender identity”;

REAFFIRMING:

That the Universal Declaration of Human Rights affirms that all human beings are born free and equal in dignity and rights and that everyone is entitled to all the rights and freedoms set forth in that Declaration, without distinction of any kind, such as race, color, sex, language, religion, political or other opinion, national or social origin, property, birth, or other status; and

That the American Declaration of the Rights and Duties of Man establishes that every human being has the right to life, liberty, and the security of the person;

CONSIDERING that the Charter of the Organization of American States (OAS) proclaims that the historic mission of America is to offer to man a land of liberty and a favorable environment for the development of his personality and the realization of his just aspirations;

REAFFIRMING the principles of universality, indivisibility, and interdependence of human rights; TAKING NOTE of the Declaration on Sexual Orientation and Gender Identity presented to the United Nations General Assembly on December 18, 2008; and

NOTING WITH CONCERN acts of violence and related human rights violations perpetrated against individuals because of their sexual orientation and gender identity, RESOLVES:

  1. To condemn acts of violence and related human rights violations committed against individuals because of their sexual orientation and gender identity.
  2. To urge states to ensure that acts of violence and human rights violations committed against individuals because of sexual orientation and gender identity are investigated and their perpetrators brought to justice.
  3. To urge states to ensure adequate protection for human rights defenders who work on the issue of acts of violence and human rights violations committed against individuals because of sexual orientation and gender identity.
  4. To request the Inter-American Commission on Human Rights and the other organs of the inter-American system to continue to pay sufficient attention to this issue.
  5. To reiterate its request for the Committee on Juridical and Political Affairs (CAJP) to include on its agenda, before the fortieth regular session of the General Assembly, the topic of “Human rights, sexual orientation, and gender identity.
  6. To request the Permanent Council to report to the General Assembly at its fortieth regular session on the implementation of this resolution, the execution of which shall be subject to the availability of financial resources in the program-budget of the Organization and other resources.
Celebrating....prematurely?
Celebrating....prematurely? (Photos: sasod.org.gy)

In other words, at the beginning of June, the Government of Trinidad & Tobago stood up in front of all our fellow nations in the Americas and for the second time pledged with them to protect its citizens from violence and discrimination on the basis of sexual orientation and gender identity. Then they came home and at the end of the month bluntly refused to put this commitment into the National Gender Policy and Action Plan.

The second time? Yes: the 2009 resolution references a very similar resolution that Trinidad & Tobago also supported the year before, the first time in the history of the hemisphere that the words sexual orientation and gender identity appeared in an official document approved by the 34 countries of the Americas:

  • The Commonwealth summit in Port of Spain this November poses a fascinating opportunity for GLBT Trinbagonians. British Foreign Office minister Chris Bryant wants gay rights to be a focus of the meeting and of UK foreign policy. And across the Commonwealth, human rights lawyers and activists are strategizing together to bring an end to the buggery laws we all inherited from colonization. When India’s was overturned in the courts in early July, the question was: will Trinidad & Tobago be next? Click below to find out.

Continue reading “Emancipation time?”

Dating site crimes against MSM in T&T raised with international human rights body

As we approach Emancipation Day, the international celebration of one of the biggest and longest human rights struggles ever, gspottt turns our attention, in a series of pieces over the next several days, to  questions of human rights.

Since late last year, GLBT groups in Trinidad & Tobago have deepened our participation in a coalition of 17 Latin American and Caribbean organizations and networks that since 2007 has been working on gender expression, gender identity and sexual orientation issues in the Inter-American Human Rights system, in partnership with Global Rights, a human rights advocacy group in Washington DC. Next weekend we will update you on our participation in the OAS (Organization of American States) 39th General Assembly meeting in Honduras last month, and what the T&T Government promised to do there.

Through this Latin American coalition and another, Commonwealth-focused one, Trinidad & Tobago citizens and our organizations are part of ongoing collaborative efforts to advance human rights for GLBT people and address the ways in which the criminalization of same-sex intimacy in our laws violates those rights.

On October 24 of last year, the Latin American and Caribbean coalition was granted a hearing by the Inter-American Commission on Human Rights, the first time in its history that the Commission (which has been in the news here of late) held a thematic hearing on human rights violations related to gender expression, gender identity and sexual orientation. The specific focus of the hearing was on the intersections between discrimination and violence based on gender expression, gender identity and sexual orientation, and other forms of intolerance, namely those based on gender, age, socio-economic status and race/ethnicity.

The presentation to the Commission on the Anglophone Caribbean by human rights lawyer (and former T&T resident) Joel Simpson focused on the region’s sodomy laws and their impact on human rights. The violence many in the gay community here are aware  has happened, largely unchecked, to many local users of a well-known website was raised before this international forum in order to illustrate how in Trinidad & Tobago these laws prevent victims from seeking justice. The presentation also drew attention to the intersection between our sodomy laws and access to health.

T&T Police and Ministry of National Security officials had no response when the pattern of attacks was brought to their attention in January 2008. Continue reading “Dating site crimes against MSM in T&T raised with international human rights body”

Lyrics to make a politician cringe

GROUPS LABEL GAYS’ EXCLUSION FROM NATIONAL GENDER POLICY “1919” THINKING: LAUNCH NEW COALITION WITH 20/20 VISION OF CITIZENSHIP & SEXUAL ORIENTATION

Gender Minister Marlene McDonald’s comments about government policy and sexual orientation last week, and their timing days before the local GLBT community begins its fifteenth annual celebration of Gay Pride, have motivated gay, lesbian, bisexual and transgender citizens of Trinidad & Tobago and their organizations to come together to form a new advocacy coalition. The Coalition Advocating for Inclusion of Sexual Orientation (CAISO) aims to educate public decisionmakers about modern understandings of sexual orientation and gender identity, and to help the public embrace the full humanity of Trinidad & Tobago citizens of diverse sexual orientations and gender identities. At last Thursday’s press briefing following the acceptance of the new National Gender Policy and Action Plan by Cabinet, Min. McDonald told the media: “We are not dealing with any issues related to…same-sex unions, homosexuality or sexual orientation.”

“The Minister’s statement was, sadly, sadly 1919,” said David DK Soomarie. “Saying you ‘are not dealing’ with your own citizens is the kind of power-drunk thinking that we expect from unaccountable governments in places like Iran and Zimbabwe, not here in Trinidad & Tobago. Our vision is to build Trinidad & Tobago into a developed nation in its treatment of sexual orientation and gender identity. GLBT people are fully human, fully citizens. We’re taxpayers. And our country will never achieve developed nation status when our Government leaders can stand up boldly and declare that they intend to leave out and treat as second-class whole groups of citizens.” Soomarie is a leader of 4Change, one of the coalition’s member groups that is named after section 4 (Recognition and Declaration of Rights and Freedoms) of the Trinidad & Tobago Constitution. 4Change formed in 2007 inspired by the successful lawsuit by maxi driver Kennty Mitchell after his humiliation by police officers for being gay.

                                      a "1919" vision of sexual orientation:                                      backwards, out of touch with reality, elitist
Gender Minister Marlene Mc Donald: a "1919" vision of sexual orientation—backwards, out of touch with reality, elitist

CAISO’s plans include: a website, monthly meetings, fundraising at home and abroad, educational activities with public and religious officials, and collaboration with local and international research, advocacy and human rights groups. The group also pledged to support efforts to provide affirming opportunities for GLBT people to practise their faiths.

Continue reading “Lyrics to make a politician cringe”