Heroes Fighting Anti Gay JAMAICA’s Laws and Stigma
“If you take a trip to Jamaica and is not a fact finding trip but a vacation trip when you can get what they offer there in other islands you are helping the people that are killing gays there and are obstructing the work that so many are trying to accomplish by those who put their life on their line everyday.” Adam
In a country that criminalizes homosexuality and where violence against LGBT people has been disproportionately high, gay rights campaigners are daring to launch a legal challenge to try to end Jamaica’s ban on homosexuality.
Reports say that campaigner and attorney Maurice Tomlinson has filed a claim with Jamaica’s Supreme Court in order to challenge aspects of the law that ban sodomy and criminalizes male-male relationships as “gross indecency.” Tomlinson, who is supported by the Canadian HIV/AIDS Legal Network and the group AIDS-Free World, fled Jamaica in 2012 and now resides in Canada. He has returned to Jamaica for this legal challenge, after a similar challenge that was started in 2013 ended due to the plaintiff, Javed Jaghai, whom Tomlinson represented, backed out because he feared violence and persecution.
Tomlinson, who is a senior policy analyst at the Legal Network, is arguing that the ban breaches his rights: ”The law is a gross violation of my human rights and those of all LGBTI people in my country,” Tomlinson is quoted as saying. “It directly infringes numerous rights guaranteed by Jamaica’s Charter of Fundamental Rights and Freedoms, and also fuels horrific violence.”
He goes on to say, “The criminalisation and marginalisation of consensual sex drives gay men and other men who have sex with men underground, away from desperately needed HIV prevention, treatment and testing services.”
The law, The Offences Against the Person Act (OAPA) carries three broad provisions (Sections 76., 77. and 78.) which in order criminalize “buggery,” the attempt to “commit the said abominable crime” which could technically be used to criminalize other acts, and finally “outrages on decency” which means that men who are even suspected of seeking out a same-gender relationship could be punished. There are other aspects of the law that empower officials to break up Pride parades and to go into people’s homes without warrants if they suspect criminal activity under this act.
In the most harsh cases for crimes relating to “buggery,” violators may face up to 10 years in prison. Same-gender relationships between women are technically not criminalized, but they are certainly not yet accepted and other laws could be used to penalize those relationships.
Jamaica’s anti-gay laws are rarely invoked in any wider sense, yet as we’ve learned from other countries the very fact of there being a ban creates state-sanctioned stigma and acts as a means for citizens and even law enforcement agencies to threaten, intimidate and even extort LGBT people. In addition to this, LGBTs in Jamaica have faced high levels of violence, disproportionate levels of joblessness and homelessness, and poor health care access. Despite indications a few years ago that in terms of policy the government might be energized to tackle discrimination against LGBTs, no such efforts have materialized and the government is characterized as having very little political will to make any such change.
Despite this, grassroots activism and a general softening of attitudes among the public does seem to be providing a more positive outlook. For example, Jamaica’s LGBT community was able to hold its first set of Pride events this past summer, including parades, flashmob events and other small gatherings. These events went off peacefully and largely without interference from officials, marking what LGBT rights groups in the region say is a significant milestone in LGBT rights progress. Civil rights groups also attest that while LGBTs in the country do still face disproportionate levels of violence and discrimination, those incidents are decreasing and there is a general trend, if not toward acceptance then to at least tolerance.
As such, Tomlinson’s lawsuit may be coming at the right time when Jamaica is ready for change, and when the courts might sense the public shift on homosexuality and reflect that. Unfortunately, as with any significant legal change for a disfavored class of people, there is a chance that this high-profiled case could spark a backlash. If the government were to choose any time to act, now would be it. For example, looking at anti-discrimination opportunities and hate crimes legislation to emphasize that the government does not condone violence or discrimination against LGBT people.
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