Jamaica: Support The Inclusion Of Sexual Orientation As A Protected Category In The Jamaican Constitution

The Jamaican Parliament is presently discussing amendments to the current bill of rights of that country's Constitution. An opportunity is thus open for the recognition of new protections for citizens' rights. Section 24(3) of the current Constitution specifically prohibits discrimination based on race, place of origin, political opinions, color or creed. The Parliament is considering proposals that gender be added to this roster. In this context, the advocacy group J-FLAG (the Jamaican Federation of Lesbians, All-Sexuals and Gays) has submitted a proposal for the inclusion of sexual orientation as a protected category. Such an addition would grant to gays, lesbians and all-sexuals the same rights and protections under the law which other sectors of Jamaican society already enjoy. Jamaica is a plural society and proudly acknowledges itself as such. To recognize sexual orientation as a protected status would enhance the rights of self-determination and self-expression for all its citizens. The need for such a recognition is rendered more urgent, however, given the fact that male homosexual acts and intimacy are currently criminalised in Jamaica. The Offences Against the Person Act prohibits "acts of gross indecency" (generally interpreted as referring to any kind of physical intimacy) between men, in public or in private. The offence of buggery is specified in section 76, and is defined as anal intercourse between a man and a woman, or between two men. However, most prosecutions under the Act in fact involve consenting adult men suspected of indulging in anal sex. The right to equal treatment before the law is basic to the Jamaican Constitution, which also affirms the right to privacy as part of the legal framework for protection of the dignity of the person. Unfortunately, the Constitution restricts the scope of its own protections in reservations clauses in Section 26 (8) and (9): these provisions preserve and exempt laws that predated the Constitution. Jamaica is thus committed to the enforcement of laws which were a colonial imposition, a vestigial survival left intact after Jamaica attained independence--for these provisions criminalizing private act were transplanted from British common and statute law. Today, the United Kingdom itself has long since eliminated "buggery" as an offense. But similar legislation remains in force in all English-speaking Caribbean countries, with the exception of the Bahamas, where buggery laws were repealed in 1998. If protections against discrimination based on sexual orientation are included in the Constitution, buggery laws could be denounced as unconstitutional and then repealed, as has happened in the past in countries such as South Africa and Ecuador. (see my question above) IGLHRC supports J-FLAG's struggle towards a Jamaican new Constitution whichwould ensure, for all its constituents, the rights to equality before the law and to the dignity of the person. Please write to the following Jamaican authorities to show your support for the J-FLAG submission. Please send a copy of your letter to:

Jamaican Federation of Lesbians, All Sexuals and Gays
P.O. Box 1152, Kingston 8, Jamaica Email: jflag@hotmail.com

In your letter, please highlight one or more of the following points:

  • A Bill of Rights should seek to protect inherent human dignity from abuse. Features which are inherently and innately a part of one's selfhood ought not to form the basis for discrimination or exclusion by others. The Jamaican Constitution currently protects against discrimination based on race, and it is now proposed that gender be included as well. We believe that sexual orientation also ought properly to be brought under the protective penumbra of the anti-discrimination clause. Such language should protect all persons from injury to their person, property or interests on the basis of the fact or perception of their sexual orientation.
  • Intolerance for difference is based on a fear that difference, particularly when it appears as a departure from norms or "deviance", may threaten the integrity of society. But society--and particularly a plural society such as Jamaica--is strengthened by diversity. Acknowledging difference expands rather than undermines the foundations of an open society. Allowing expression and debate is a condition of democracy. With the proposed amendments, the new Jamaican Bill of Rights would enshrine in law the principle of respect for all types of difference - political, ethnic, cultural, religious, sexual, social, economic and physical.
  • The Offences Against the Person Act prohibits "acts of gross indecency" (generally interpreted as referring to any kind of physical intimacy) between men, in public or in private. The offence of buggery is created by section 76[of that Act or of the Penal Code?], and is defined as anal intercourse between a man and a woman, or between two men. No use of force or denial of consent is required for the commission of the offence of buggery. Most prosecutions in fact involve consenting adult men suspected of indulging in anal sex. To the best of local activists' and ILGHRC's knowledge, a man and a woman engaging in consensual anal sex are seldom, if ever, prosecuted for buggery. The social effect of these laws is to stigmatize homosexuality, and to penalize the actors not so much for their acts as because of who they are - namely, homosexual men. The buggery and gross indecency laws sanction discrimination against gay men, for being gay men. Although no explicit penal sanctions attend lesbian conduct, lesbian women are affected by the same taint as male homosexuals. Ironically, the best evidence of this is the fact that the Jamaican word for lesbian--"sodomite"--derives from an imputation against males. And in socio-cultural terms --jobs, housing, general treatment - the Jamaican lesbian faces as comprehensive a pattern of discrimination as her male counterpart, though she may be less likely to face physical violence.
  • Stereotypical and derogatory comments -encouraged by the stigma that buggery laws foster-affect the ability of gays and lesbians to make their contributions to Jamaican national life. Despite the significant contribution of the gay and lesbian population to all areas of national life, they are marginalised, victimised, abused - emotionally, verbally and physically - and even sometimes killed. Thus they are denied, in real terms, the basic rights of self-expression which heterosexuals take for granted.
  • Broad-based anti-discrimination clauses are in keeping with prevailing international human rights standards. In 1994, the United Nations Human Rights Committee, under the Optional Protocol of the International Convention on Civil and Political Rights (ICCPR, to which Jamaica was, until recently, a signatory) had occasion to consider sections 122 and 123 of the Tasmanian Criminal Code, which was similar to the Jamaican Gross Indecency Law. The Committee found that the provision violated articles 2 and 17 of the ICCPR which, respectively, prohibit discrimination and protect privacy. It also rejected Tasmania's claim that "moral issues are exclusively a domestic concern" and interpreted "sex" in the non-discrimination clause of the ICCPR as including "sexual orientation". A growing number of countries are being guided by these principles: South Africa and Ecuador have recently incorporated into their constitutions explicit protections against discrimination based on sexual orientation, while dozens of countries and jurisdictions have eliminated sodomy laws in the last decade.