Wrong side of history
ON SEPTEMBER 6, 2018, the Supreme Court of India repealed Section 377 – a 150-year colonial-era law that criminalised samesex intercourse and intimacy, among other offences. The court held that Section 377 contravenes key constitutional rights of LGBT persons.
The decision was, rightfully so, a cause for much celebration for the LGBT community in India, and even the wider world that welcomed another nation to the list of those ensuring equal protection for the LGBT community by doing away with archaic and discriminatory laws.
When I first heard of the decision, I remembered Trinidad where, just this year, the Constitutional Court ruled that the buggery law was unconstitutional. Then I thought of Jamaica, and I wondered, will we ever have this moment in history?
Much like India, Jamaica has its own British colonial history beginning in 1655. Though colonisation had ended in 1962 when we won Independence, British culture and practices remain a predominant influence within our society. We hold on to dress codes that are not conducive to our climate. We turn up our noses at our local dialect and embrace the ‘Queen’s English’.
There is the irony of the governor general, the Queen’s representative, giving an address to mark our Independence, 56 years later. However, the most detrimental impact of our colonial past remains in the laws we chose to retain postIndependence.
Much like Section 377, Sections 76-79 of the Offences Against the Persons Act criminalise anal intercourse and all forms of male same-sex intimacy. These sections are protected by a ‘savings law clause’ in our Constitution, which means that they cannot be said to violate constitutional rights.
Around the world, the intolerance of LGBT persons has largely been driven by religious ideals. This is no different in Jamaica, which has strong beliefs rooted in Christianity. However, some Jamaicans have failed to appreciate that individual rights do not start and end with Christianity.
HARD LESSON TO LEARN
The Supreme Court of India in its judgment discussed extensively the influence of society. However, the main takeaway is that the majority view of a society should not hinder minority groups from enjoying fundamental rights. This is a hard lesson to learn, especially in a society that does not take lightly to challenging the status quo.
Despite bold commitments made on international platforms and on campaign trails, the Jamaican Government has not achieved significant progress in making these statements, these promises, a reality.
This is reflective in the poor construction of our laws, which in many ways are discriminatory and do not respect and ensure the rights of marginalised groups. When it comes to human rights and protecting its most vulnerable, Jamaica remains behind.
The history of LGBT rights and issues in Jamaica is just one example of Jamaica’s slow realisation of rights for marginalised groups.
Consider the 1992 R v R Common Law decision, which repealed the UK marital law provision. Consider that Trinidad, in 2000, years before our Sexual Offences Act, amended its SOA to repeal the marital-law provision.
Jamaica established its own Sexual Offences Act (SOA) in 2009, which contains a marital-rape provision under Section 5. During the joint select committee review of the SOA, this provision was hotly contested by civil-society organisations and faith-based groups alike. A year after the last sitting of the committee, we wait to see whether the right decision to repeal the provision will be made.
We say we are independent, yet we hold on to relics. We cry for reparation, but continue to ignore the real-life plights of our own citizens. We are all talk, and very little action; bold statements but not bold enough moves. Unless we get serious about challenging the status quo, we will remain on the wrong side of history.