Caribbean repealing colonial same-sex relations laws

• A huge, monumental shift occurred in a relatively short number of years, says the head of a human rights group

In the past 12 months, a cluster of neighbouring countries have overturned laws criminalising consensual sex between samesex partners.

The Caribbean island nations of Antigua & Barbuda, St Kitts & Nevis and Barbados all recently repealed “buggery” or “sodomy” laws. Two more in the region could follow, as courts in St Lucia and Grenada weigh the legality of their sex bans. If they follow suit, they would have successfully halved the number of countries with such laws in the Commonwealth Caribbean in less than a decade.

“It’s been a huge, monumental shift in a relatively short number of years,” said Téa Braun, CEO of Human Dignity Trust, a human rights organisation that advised on some of the legal challenges. “The back-to-back nature in the Caribbean is pretty unique.”

The changes are the result of an almost decade-long campaign by the Eastern Caribbean Alliance for Diversity and Equality to overturn discriminatory laws in the region.

In 2015, a group of activists first gathered in Grenada and started mulling a plan to target sex bans on five Caribbean islands. The coalition took inspiration from a campaign in nearby Belize challenging a part of the country’s criminal code that penalised same-sex relations. In 2016, Belize’s Supreme Court overturned that section of the legislation, saying it violated constitutional rights to dignity, privacy and equality.

“That created a starting point for the entire region,” said Braun. “It demonstrated that the courts are an effective vehicle for challenging this type of discriminatory law.”

Of the 67 jurisdictions that criminalise consensual sex between two men or two women, around half have historic ties to the UK. The laws are remnants of 19th century antisodomy criminal codes put into place by the British Empire. While parliament decriminalised homosexuality more than half a century ago in England and Wales, and legalised same-sex marriage in 2014, the bans have remained on the books in former colonies, even after independence.

In 2018, then prime minister Theresa May expressed regret for the UK’s role in criminalising homosexuality in former colonies and urged members of the Commonwealth to liberalise their “outdated” laws.

Since then, only Singapore and a handful of countries in the Caribbean have done so, and in relatively limited ways.

India, where Britain embedded a “sodomy” law into a penal code for the first time in 1860, is in the midst of a landmark hearing at the country’s highest court over legalising same-sex marriage. But the government is pushing against liberalising the country’s laws.

In much of the Eastern Caribbean, LGBTQ people have few protections; none of the island nations in the region have legalised same-sex marriage.

In the places that still have “buggery” laws, penalties can include a decade in prison; their wording and interpretation mean that consensual sex between members of the same sex can be, according to the law, akin to rape.

The laws have broad latitude, are vaguely worded, and serve to legitimise discrimination and hostility towards LGBTQ people in the Eastern Caribbean, according to a 2018 Human Rights Watch report. The research, which included interviews with 41 people, found that LGBTQ people were more vulnerable to eviction, homelessness and exclusion from their families. Around a third of the interviewees had experienced physical violence because of their sexual orientation.

Orden David, who works at the health ministry in Antigua & Barbuda, was “a victim of persecution and subjected to acts of physical violence”, according to court filings in a case against the country’s antisodomy law. On one occasion when he reported a robbery to the police, David said officers “appeared to be more focused on his sexual orientation as opposed to the crime alleged. The cops asked ‘why did you choose this lifestyle?’”

In St Lucia, where a samesex sex ban is being challenged, Kenita Placide, the executive director of Ecade, said they were held at knifepoint after publicly asking the government to protect gay men from violence.

“It actually propels me to do more,” she said. “If it would change things, I would lay my life down.”

Alexandrina Wong, the executive director for advocacy group Women Against Rape who works with Ecade, was surprised the ruling went their way in Antigua & Barbuda last year. “It literally came like a thief in the night,” she said.

“We were elated, astounded and overjoyed.”

Overturning the antisodomy laws in what are conservative countries does not come without pushback. Belize’s government challenged the pioneering ruling, though it was ultimately upheld in 2019.

Parliaments across the Eastern Caribbean have yet to make amendments to the existing legislation; the laws “cannot be used, but they are still on the books”, Placide said.

“The truth is decriminalisation is just a wall, a single wall,” said Caleb Orozco, who was a litigant in the Belize case and is executive director of the United Belize Advocacy Movement.

Next, advocates are setting their sights on adding LGBTQ protection and rights to criminal codes and constitutions.

“You pass one hurdle and then the other,” said René Holder-McClean-Ramirez, an LGBTQ advocate who filed the case in Barbados. “We’re very aware that it’s a long game.”

IT DEMONSTRATED THE COURTS ARE AN EFFECTIVE VEHICLE FOR CHALLENGING THIS TYPE OF DISCRIMINATORY LAW

Téa Braun CEO, Human Dignity Trust