Dear editor,
Once again, Jamaican courts have ruled against recognizing the human rights of LGBT people. On October 27 the Supreme Court upheld our country’s archaic anti-sodomy law and claimed that only Parliament could repeal this discriminatory edict. This British colonially imposed statute condemns consenting gay men to ten years in prison at hard labour for any acts of intimacy, even holding hands in the privacy of their bedroom. And upon their release convicted gays must also register as sex offenders and always carry a “pass” or face a nearly US$7,000 fine plus spend a year behind bars every time police catch them without said pass.
Similar anti-sodomy laws are being struck down across the world, including in the Caribbean. And in two separate decisions the western hemisphere’s highest human rights tribunal, the Inter-American Commission on Human Rights, condemned Jamaica’s law for violating the country’s international obligations. Not only has this law served as licence for horrendous abuses against LGBT Jamaicans, including murder, it has also been directly linked to the fact that one third of Jamaican men who have sex with men (MSM) have HIV. This is the highest prevalence rate in the world. However, the state and the courts have ignored these damning facts in favour of prioritizing hate. Dreadful.
Over seven years ago I filed a constitutional challenge to this law with the support of the HIV Legal Network. I took up the matter after my previous client dropped out because of vicious death threats that he and his family faced. Like many gay Jamaicans, this brilliant young man subsequently left the island.
In a pathetic concession to powerful religious extremists, the court allowed nine church groups to enter the case in support of the government’s position. However, the judge rejected the Public Defender’s application to join and assist me. The court then permitted the government and churches to delay this matter multiple times even though constitutional claims are supposed to be heard quickly.
Despite this shameful start, as an attorney I still believed that our courts would protect vulnerable LGBT people like me against the homophobic tyranny of the majority. Yet, time and again our judges have hidden behind politics and public opinion to rule against LGBT inclusion. For example, the Court of Appeal upheld a ban on a TV ad that called for respecting the rights of gays. The same court also overturned a decision that would have allowed Montego Bay Pride to use a public venue.
And even more egregious is the fact that the court refused to allow a full hearing on the human rights violations caused by the anti-sodomy law. Instead, the judges limited my case to one very narrow technical point-whether the law was constitutionally saved from judicial review-and used that to dismiss the case. However, our constitutional law has long required that human rights provisions must be given a generous and liberal interpretation while limitations on rights, such as the “savings law clause” must be narrowly interpreted. Nevertheless, the court ignored these clear constitutional principles in what I consider to be a supreme act of judicial cowardice.
I am Jamaican by accident of birth. But like the victim of an abusive relationship, I have struggled to remain faithful to my country despite suffering multiple attacks. I naively kept hoping that my homeland would one day live up to its motto: “Out of Many One People.” However, it is now painfully clear that my dream of inclusion has been a nightmare, and I am unabashedly unwanted.
Thankfully, I have options and I will exercise them. This means distancing myself from the land of my birth. I now live in Canada where I was forced to flee after multiple death threats that I received because of my same-sex marriage. I am thankful that I now reside in a country where my life and love are not criminalized.
Some may suggest that I use my privilege and continue the work for change in Jamaica. To those persons I say, please check your own privilege. If your rights to live and love have never been the subject of lengthy acrimonious public debate, or the courts have not repeatedly trampled on your rights, or you have not received death threats that the police refused to investigate, or you have never had a bomb threat at your home, then respectfully, you are not qualified to speak. Because I have endured all this and much more while other LGBT Jamaicans have paid with their lives for daring to exist.
Ironically, while there are multiple reports of Jamaican churchmen raping and pilfering their congregants, still the biggest national threat that most Jamaicans perceive is what consenting adults do with their private parts. So much so that our Parliament sought to entrench the ban on same-sex intimacy in our constitution. Ridiculous.
I see little hope of justice for LGBT people from Jamaican courts. Also, the political movement for inclusion faces steep odds as the last public poll showed that over 90% of Jamaicans are homophobic. This is largely due to fundamentalist Christian ideology imported from North America.
May those who choose to continue the island’s LGBT liberation struggle eventually have success. Meanwhile, I will remain where I am wanted in Canada. Here I now work as a nurse caring for other bruised and battered people. I try to ease their pain while I hope to end my own.
Jamaica, farewell.
Kind regards,
Maurice Tomlinson
