By Maurice Tomlinson and Sandra Ka Hon Chu
Jamaica is at a critical juncture. Still grappling with the legacies of colonial rule, the death of Queen Elizabeth II triggered renewed calls to rid itself of the remnants of colonization, including through further constitutional review. At present, Jamaica’s Constitution includes a clause that seemingly preserves some pre-Independence laws from constitutional review, in clear violation of other rights in the same Constitution. Although the ongoing review presents an excellent opportunity to rectify this, recent announcements have raised concerns that this opportunity for justice may slip away.
In an appeal to the religious community, and arguably voters, the Jamaican government has refrained from changing outdated, unjust laws that discriminate against LGBTQ+ people. However, despite the government’s position, a crucial case brought by Jamaican-Canadian lawyer Maurice Tomlinson could prevent the retention of these discriminatory laws.
With the support of the HIV Legal Network, Maurice is challenging Jamaica’s archaic anti-sodomy laws which date back to the nineteenth century. The case will be heard in the Constitutional Court of Jamaica’s Supreme Court from June 26th to 28th. If successful, this case will pave the way for transformational change against the harmful effects of these discriminatory laws. But the ongoing constitutional review means that Maurice is in a race against time.
It is tremendously important that Maurice’s case is heard and decided before a new Constitution comes into effect in Jamaica that could entrench these misguided laws. If Maurice wins his court case, this would prevent the anti-gay laws from being preserved.
Although this pending constitutional review certainly intensifies the urgency of Maurice’s case, the challenge is twofold. In addition to the pressing human rights concerns, reversing the anti-sodomy law without further delay is crucial to promoting the health of all people in Jamaica and beyond. Fear of criminal prosecution, and the stigma and discrimination this engenders, deters people from accessing HIV prevention, care, treatment, and support, fueling HIV transmission among men who have sex with men and their sexual partners, which can also include women. Despite common misconceptions, the task of repealing anti-gay legislation is not only a human rights imperative for the LGBTQ+ community, but a critical public health and human rights issue for all.
Jamaica currently stands at a crossroads, with the protection of human rights hanging in the balance. The government’s resolve to maintain the status quo not only goes against its stated intention to decolonize the Constitution – as anti-gay legislation was a colonial-era import – it also perpetuates the violation of human rights and ignores the public health implications of these laws. By challenging them, Maurice’s case provides hope that a more rights-respecting Jamaica may be on the horizon.
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Maurice Tomlinson is a Human Rights Advocate, and Sandra Ka Hon Chu is the Co-Executive Director, HIV Legal Network.
