LGBTQ Caribbean activists' decades-long challenges against countries to gain equality are lining up in multiple courts, creating a potential tidal wave ushering in queer rights for the region.
At least 11 legal challenges are in various stages of the judicial process, with some cases facing high courts in a make-or-break moment for the Caribbean's LGBTQ movement.
Next week, the Privy Council in the United Kingdom is expected to release rulings for two of the region's most anticipated cases — addressing same-sex marriage in Bermuda and the Cayman Islands.
The Jamaican Supreme Court's March 8 hearing on same-sex marriage was postponed, said gay Jamaican activist and attorney Maurice Tomlinson. A new date has not been set. Tomlinson's decriminalization case against Jamaica's government has been heard once at the Inter-American Commission on Human Rights, in November 2019. The commission has been quiet since then.
Jamaica's government, however, has not been silent regarding the case. The government's legal team joined forces with nine religious fundamentalists groups, according to Tomlinson, who this month launched aGoFundMe campaign to raise $50,000 to continue the fight.
Tomlinson, a senior policy analyst at the Canadian-based HIV/AIDS Legal Network, filed his discrimination case against the Jamaican government in 2015 with the assistance of U.S.-based AIDS-Free World and the Thompson Hine LLP law firm.
It is one of nine cases in the Caribbean challenging the islands' colonial-era buggery laws that criminalize homosexuality in Antigua and Barbuda, Barbados, Dominica, Grenada, Trinidad and Tobago, St. Kitts and Nevis, St. Lucia, and St. Vincent and Grenadines led by the Eastern Caribbean Alliance for Diversity and Equality and Tomlinson's legal coalition.
Hearings for LGBTQ cases across the Caribbean have either been slowed down due to the global coronavirus pandemic, postponed, or are waiting to be heard in the legal system, Tomlinson said.
Tipping point
The Caribbean is the only region in the Americas with nations that criminalize consensual same-sex relationships, said Neela Ghoshal, associate director in the LGBT rights program at Human Rights Watch.
"There are no other countries outside of the Caribbean that are criminalizing same-sex conduct" in the Americas, Ghoshal, who identifies pansexual and queer, told the Bay Area Reporter.
"I think it is coming to a tipping point," she continued. "I would not be surprised at all if within 10 years all of the countries in the Caribbean have decriminalized consensual same-sex conduct."
Driven toward gaining equal rights, Caribbean LGBTQ activists have built momentum, Ghoshal, 43, noted.
"Activists there are very driven, very motivated, and they are also networked," she said.
She pointed out that in addition to the momentum they have built, they also have international and regional law, and in some cases, the countries' constitutions, depending on how judges interpret it, on their side too.
Tomlinson is more cautious about declaring the Caribbean's decades-long battle for LGBTQ rights is heading toward a turning point. "It is always hard to tell when you are in the middle of a struggle where the end is, where the endpoint is. Anything can surprise you," the 50-year-old told the B.A.R.
"I think the former British colonies are now playing catch up with the rest of the region and the Western Hemisphere," added Tomlinson. "That is why I think that we are going at breakneck speed."
The struggle
Caribbean LGBTQ activists' struggle for equality has been a long battle since emerging in the late 1990s. The movement only recently gained traction as LGBTQ activists launched legal challenges to decriminalize homosexuality and educational campaigns with the support of organizations in North America and the U.K.
"The Caribbean is still one of the most dangerous places to be an LGBTQIA+ person," Billie Bryan, founder and president of Colours Cayman in the Cayman Islands, told the B.A.R. "We are afforded very few rights across the Caribbean."
The incident that became Tomlinson's clarion call for LGBTQ rights in Jamaica came in 2013 when Dwayne Jones, a 16-year-old transgender girl, was killed by a mob from her own church.
"It proved to me and to the rest of Jamaica that there was just irrational fear of LGBT people," said Tomlinson. "Even if we weren't doing anything, we were just minding our own business, religious people were still attacking us."
Anti-gay sentiment has been fueled by American evangelical homophobic rhetoric and Caribbean societies adopting the colonial-era buggery laws that criminalize gay sex and other sexual activity deemed "unnatural."
The laws did not go by the wayside in new constitutions when the colonies gained independence or became territories of other nations, such as joining the British Commonwealth. Instead, the conservative governments adopted the laws as their own and even strengthened them.
"They are pretending as if it is their law," Tomlinson said. "The British left a bad law, there is no doubt about that, but the Caribbean has now owned it while Britain has dumped the law."
"That is the bitter irony of it all that this is somehow the way it has always been," said Bryan, 37, a pansexual transgender woman, explaining it became "ingrained into our culture."
Britain struck down the Sexual Offenses Act, where the anti-sodomy law appears, in 1967. The only time Britain enforced a law on the Caribbean islands within the Commonwealth was in 2000 when it extended decriminalization.
Anti-sodomy laws remaining on the books contribute to violence against LGBTQ people through impunity for such violence, and the government signaling it does not care about "this form of violence," Ghoshal said.
The United Nations, IACHR, and human rights organizations like HRW have documented violence against LGBTQ people in individual island and mainland countries throughout the Caribbean.
HRW published a report, "I Have to Leave to be Me: Discriminatory Laws Against LGBT People in the Eastern Caribbean," in 2018.
The organization followed up the United Nations' 2020 periodical report on St. Kitts and Nevis, and St. Lucia documenting human rights violations against LGBTQ people with its own brief earlier this year. The brief focused on the impact of the countries' anti-sodomy laws.
HRW called once again for the countries to follow the U.N.'s recommendations to decriminalize homosexuality and implement non-discrimination laws protecting sexual orientation and gender identity.
Tomlinson believes the movement has reached a point where a linear path to gaining rights, from decriminalization to marriage equality, is no longer necessary.
"I have been arguing for some time we don't need to go through the stages that the other territories did," he said. "Go for everything. Just ask for our rights as humans to be recognized and that is that."
Opponents
American evangelicals are teaming up with local conservative and religious groups to fight back against LGBTQ rights by disrupting cases and attempting to overturn newly passed laws. In Dominica, the judge was forced to recuse herself from the decriminalization case last September because her pastor led a coalition of anti-gay churches to block the hearing.
In the Cayman Islands, the conservative Cayman Merchants Association pushed through a judicial review of Governor Martyn Roper's use of Section 81 of the island's constitution. Roper, a British diplomat, used the reserve powers to enact the Civil Partnership Law, formerly named the Civil Unions bill, in September 2020. The island's legislature voted the bill down in July of that year.
A month later, conservatives filed the judicial review behind closed doors. It was not made public until the Cayman Compass obtained a copy and published it in January 2021, prompting Colours Cayman to petition the governor in February and file to join the judicial review as an interested party in March.
In Jamaica, American and British evangelicals applied to join his same-sex marriage case at the island's supreme court in February.
One of the problems is that Caribbean laws were written in a "god-fearing" language when religion was far more influential than today, Bryan explained.
"That gives the impression that these laws ... are handed down by God or something, so [people] take it as gospel," she said. "That became the common understanding of it that persists to this day, unfortunately."
Bryan stated that whenever LGBTQ activists take a legal standpoint to their issues, opponents "will always bring it back to something religious and cite certain things within our laws that have some kind of religious connotation."
"It is really hard to separate anything legal from something religious in that regard," added Bryan.
On top of that, the U.S. conservative religious movement stirred up domestic anti-gay sentiment in the Caribbean.
"The U.S. religious conservative movement have a lot of responsibility in this — in really kind of stirring up hateful sentiment among these communities," said Ghoshal.
Pathway to equality
Courts have been the pathway to LGBTQ rights in the Caribbean.
Tomlinson called Caribbean politicians "cowards" and he has long given up speaking with them, he told the B.A.R. They want the "courts to settle" LGBTQ rights, he said. "They are afraid of losing any kind of political capital."
Ghoshal stated that "nobody wants to take that leap" to "go out on a limb and support" LGBTQ rights and potentially commit political suicide in the Caribbean.
Not many LGBTQs have been willing to be the faces of the legal challenges against the various governments, Tomlinson noted, due to the death threats to their families, friends, and themselves. It took years before plaintiffs like Caleb Orozco in Belize and Jason Jones in Trinidad and Tobago waged their fights to decriminalize homosexuality in their countries.
"It took a while to get LGBT people brave enough and courageous enough to be the faces of these challenges because of the pushback that you are exposed to," said Tomlinson. "We now have brave people coming forward and they took inspiration from Belize and Trinidad."
Ghoshal explained the courts are safer because they are "a little more kind of nameless and faceless," and judges are appointed, not elected, she said.
However, there are some examples of politicians taking action, though not always in a positive way.
Ghoshal cited Barbados Governor Dame Sandra Mason proposing to put same-sex marriage to a referendum last September, but she said it appears to be misguided support for the island's LGBTQ community.
"I think she's in an intent to be supportive, but marriage equality is not going to pass as a referendum in Barbados right now," said Ghoshal. "That is not the way to go."
Mason is out of touch with what queer Barbadians' want. They want decriminalization and non-discrimination, not marriage equality right now, she said. LGBTQ Barbadian activists have told Ghoshal, "They, sort of, feel like, we will get to marriage equality when we get there, but don't put our rights to a referendum to stand up for us."
Bryan and Ghoshal said there are many issues beyond decriminalization and marriage equality that are important to LGBTQs, such as non-discrimination and hate crimes laws, gender recognition, and family and adoption laws.
Ghoshal noted that despite past issues with politicians not standing up for LGBTQ rights, there is movement. She noted Jamaica's stand on behalf of LGBTQ Jamaicans in 2018 by denying Arizona anti-gay pastor Steven Anderson of Faithful World Baptist Church entry into the country based on his past anti-gay statements.
However, for the most part Caribbean governments have been unreliable.
Arguing cases in the courts has been an effective way for LGBTQs to gain rights. But the pathway is imperfect, noted Ghoshal, due to the process being embedded in the colonial system. People will call it "colonial imposition," she believes, if Bermuda and the Cayman Islands' same-sex marriage cases are successful at the Privy Council next week.
The U.K. has attempted to rid itself of its colonizer image for decades. Bryan said that Britain needs to get over it and do what is right.
"They are really dragging their feet on supporting the overseas territories," said Bryan. "Twenty years on [and] we are still fighting for marriage equality. It should not be this much of a struggle.
"They are compelled to step in and correct these human rights violations as they've done so in the past," she continued, noting the U.K. pushed decriminalization on the Commonwealth countries in the Caribbean in 2000.
Bryan said that Bermuda and the Cayman Islands' last effort to gain marriage equality is important. "This is kind of step one," she said. "It's leading up to a much bigger fight that encompasses so many other pressing issues."
"The ball is now ... squarely in our court, in the Caribbean," Tomlinson added. "We need to push for these cases to be heard because one decision handed down - it will move a major plank" that the "religious leaders are standing on."
Got international LGBTQ news tips? Call or send them to Heather Cassell at WhatsApp/Signal: 415-517-7239, Skype: heather.cassell, or [email protected]
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