Human Rights Violations of Lesbian, Gay, Bisexual, and Transgender (LGBT) People in Jamaica: A Shadow Report

Introduction

This shadow report on the human rights situation of LGBT people in Jamaica was written and submitted through the collaborative efforts of Jamaica Forum for Lesbians, All-Sexuals, & Gays (J-FLAG), Women for Women (Kingston), Heartland Alliance, International Gay and Lesbian Human Rights Commission (IGLHRC), AIDS-Free World (AFW), and The George Washington University Law School International Human Rights Clinic.1

Jamaica became party to the International Covenant on Civil and Political Rights ("ICCPR") on October 3, 1975. Jamaica submitted its second report under Article 40 of the ICCPR in January 1997.2 In its concluding observations in response to that report, the Human Rights Committee ("HRC") expressed its hope at that time that the new Jamaican Charter of Fundamental Rights and Freedoms ("Charter") would explicitly prohibit of discrimination on the grounds of sex, and that any conflict between provisions of Section 24 of the Jamaican Constitution and the ICCPR would be eliminated.3 Since that time, however, Jamaica, has not complied with the HRC's recommendations. Rather than prohibiting discrimination on the grounds of "sex," the new Charter prohibits discrimination on the ground of being "male or female." This language serves to circumvent protections guaranteed under the ICCPR by excluding from the Charter the prohibition of discrimination on the basis of sexual orientation and gender identity, which the HRC has found to be protected grounds under the category of "sex."4 Jamaica failed to submit its third report under the ICCPR in 2001, but submitted its combined third and fourth reports on July 20, 2009.5

As recently as June 2011, the Human Rights Council has reaffirmed its commitment to LGBT issues through passage of Resolution 17/19, entitled Human rights, sexual orientation and gender identity.6 The passing of this resolution stresses the importance of LGBT-identity related issues within human rights, and underscores the great steps that the Jamaican government must take in order to bring its laws into compliance with the ICCPR.

Executive Summary

The human rights situation of Lesbian, Gay, Bisexual, and Transgender (LGBT) people in Jamaica is dire. The Jamaican government recently amended its Constitution, adding a new Charter of Fundamental Rights and Freedoms (Charter). However, the Charter does not contain protection against discrimination on the basis of sexual orientation or gender identity.7 In fact the Jamaican government explicitly excluded protections on the basis of "sex" and instead granted protections against discrimination on the grounds of being male or female, thus excluding any possibility for judicial interpretation of the Charter as including protections on the basis of sexual orientation and gender identity.

Jamaica retains colonial legislation criminalizing same-sex sexual conduct.8 A constitutional provision prevents judges from reviewing the constitutionality of any laws enacted prior to the adoption of the constitution.9 The only potential manner of overturning these laws is through legislative mechanism.10 However, the legislature has refused to take steps to strike down these provisions, and the Jamaican Prime Minister has explicitly stated that he does not support any attempt to repeal these laws.11

Jamaican politicians publically engage in homophobic speech,12 which fosters an atmosphere of intolerance towards LGBT people within the Jamaican population.13 Violence and discrimination against LGBT individuals is common and widespread.14 Often the police, the Jamaican Constabulary Force ("JCF"), are complicit in these crimes. Even when the police are not involved, the government is in violation of its obligations under the International Covenant on Civil and Political Rights (ICCPR) for failing to protect, investigate, and prosecute perpetrators of violence and discrimination against individuals on the basis of their sexual orientation or gender identity.15

Further, the Jamaican government offers no protections to LGBT individuals. Similarly situated individuals in opposite-sex and same-sex relationships are treated differently under Jamaican law.16 Transgender persons are afforded no legal recognition of their preferred gender, which marginalizes them from the rest of society. Additionally, the atmosphere of intolerance denies LGBT individuals access to minimum state services, such as health care and police protection.17


Endnotes

  1. This report was primarily authored by Laetitia Jojic (JD ‘11, George Washington University Law School), under the supervision of Professor Shana Tabak of the George Washington University Law School, International Human Rights Clinic, with significant assistance provided by Supraja Murali (JD Candidate 2012, George Washington University Law School) and Timothy Merlo (JD Candidate 2012, George Washington University Law School). Special thanks to Stefano Fabeni (Heartland Alliance, Director of Global Initiative for Sexuality and Human Rights) for extensive guidance in the drafting of this report, and to the numerous Jamaican activists and civil society organizations who contributed valuable information, reports and comments throughout the drafting of this report. Questions regarding this report may be addressed to Professor Shana Tabak, George Washington University, stabak@law.gwu.edu.
  2. U.N. Human Rights Comm. [ICCPR], Consideration of Reports Submitted by States Parties under Article 40 of the Covenant, Second Periodic Report of States Parties due 1986, Addendum, Jamaica, U.N. Doc. CCPR/C/42/Add.15 (Mar. 7, 1997).
  3. U.N. Human Rights Comm. [ICCPR], Consideration of Reports Submitted by States Parties under Article 40 of the Covenant, Concluding Observations of the Human Rights Committee, Jamaica, ¶4, U.N. Doc. CCPR/C/79/Add.83 (Nov. 19, 1997).
  4. Toonen v. Australia, U.N. Human Rights Comm., Commc’n. No. 488/1992, ¶ 8.7, U.N. Doc. CCPR/C/50/D/488/1992 (1994).
  5. U.N. Human Rights Comm. [ICCPR], Consideration of Reports Submitted by States Parties under Article 40 of the Covenant, Third Periodic Report of States Parties, Jamaica, ¶ 1, U.N. Doc. CCPR/C/JAM/3 (July 20, 2009) [hereinafter Jamaica Third Periodic Report].
  6. U.N. Human Rights Council, Resolution 17/19, Human rights, sexual orientation and gender identity, U.N. Doc. A/HRC/17/L.9/Rev.1 (June 17, 2011).
  7. The Charter of Rights (and Wrongs) – Commentary, JAMAICA GLEANER, April 5, 2011 available at http://jamaicagleaner. com/gleaner/20110405/cleisure/cleisure3.html.
  8. The Offences Against the Person Act §§ 76-77, 79, available at http://www.moj.gov.jm/laws/statutes/Offences%20Against%20the%20Person%20....
  9. Jam. Const. § 26(8).
  10. This practice was recently "re-saved" in the Charter of Fundamental Rights and Freedoms. Telephone Interview with Corbin Gordon, J-FLAG (Sept. 14, 2011).
  11. "Walk for Tolerance" calls for end to Bigotry in Jamaica, AIDS-Free World, Apr. 8, 2010, available at http://www.aidsfreeworld.org/Our-Issues/Homophobia/Walk-for-Tolerance-Ca... Jamaica.aspx; Buggery laws firm – PM says life or 15 years for some sex-offence breaches, JAMAICA GLEANER, Mar. 4, 2009, available at http://jamaica-gleaner.com/gleaner/20090304/lead/lead1.html.
  12. Video: Violence and Venom Force Gay Jamaicans to Hide, WORLDFOCUS 2009, available at http://worldfocus.org/blog/2009/11/10/violence-and-venom-force-gay-jamai....
  13. See infra pp. 4-6.
  14. See infra pp. 10-11.
  15. U.N. Human Rights Comm. [ICCPR], General Comment No. 31: The Nature of the General Legal Obligation Imposed on States Parties to the Covenant, ¶ 18, U.N. Doc. CCPR/C/21/Rev.1/Add. 13 (May 26, 2004) [hereinafter General Comment No. 31].
  16. 16 The Family Property (Rights of Spouses) Act, 2003, Part I.2(1).
  17. See infra pp. 7-9.

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