Caribbean LGBTQ+ activists scored two major victories this summer when a court threw out laws criminalizing same-sex intercourse in two Caribbean nations: Antigua and Barbuda, and, just last week, Saint Kitts and Nevis. But the rulings were just the latest chapters in a coordinated legal struggle that is reshaping the English-speaking Caribbean, a region that has sometimes been considered one of the more dangerous places for LGBTQ+ people.
Over the last decade, legal cases challenging anti-LGBTQ+ laws that date back to the British colonial era have been piling up across the region. Courts have already thrown out laws banning gay sex in four former British colonies: Belize (2016), Trinidad and Tobago (2018), Antigua and Barbuda (July 5) and on August 29, Saint Kitts and Nevis. Meanwhile, challenges have been or are soon to be heard in six of the seven countries that still have laws. The six countries with challenges in the works are Barbados, Dominica, Grenada, Jamaica, Saint Lucia, and Saint Vincent and the Grenadines; Guyana is the only one without a case in progress.
The United Kingdom decriminalized sodomy in England and Wales in 1967, and the rest of the U.K. by 1982, but its former colonies all retained sodomy statutes on independence. Of those in the Caribbean, only the Bahamas passed legislation to decriminalize sodomy in 1991.
Decades of local activism and pressure from international leaders have failed to move national politicians to repeal these laws, which can carry penalties as stiff as life in prison. Even though they are rarely enforced, activists say the laws stigmatize queer people and expose them to discrimination and violence. Court cases have mostly been a successful route to equality, but they are expensive, and are seen to carry risks in places where violence against LGBTQ+ people is rife. Complainants often fear for their lives, and there are worries that raising issues in courts can provoke a public backlash.
Yet activists across the region are doing the complex work of recruiting and protecting complainants and coordinating a legal strategy aiming to have sodomy laws struck down in the last countries in Americas that ban gay sex.
The Eastern Caribbean Alliance for Diversity and Equality (ECADE), an umbrella organization of LGBTQ+ groups across the small islands of the region, has taken the lead in the fight with assistance from the Canadian HIV Legal Network. Buoyed by court decisions that struck down sodomy laws in Belize in 2016, and in Trinidad and Tobago in 2018, ECADE began working with local organizations to file court challenges across the region in 2019.
ECADE, which participated in the Antigua and Barbuda and in the Saint Kitts and Nevis cases, is working with local organizations on three other court challenges, those pending in Barbados, Grenada and Saint Lucia. The case in Grenada is expected to be heard later this year, while the other two outstanding cases have already been heard and are awaiting rulings.
ECADE is not participating in a case in Dominica, filed by an individual and supported by Minority Rights Dominica, and one filed by two individuals in Saint Vincent and the Grenadines; those two cases are expected to be heard this year as well.
“They know the laws can’t be upheld, but they are so afraid of the evangelical church groups that control the electorate, that they pretend the laws can be defended. They’re not willing to sacrifice the political capital,” says Jamaican-Canadian activist Maurice Tomlinson, who has spearheaded numerous court challenges against homophobic laws and regulations in Jamaica over more than a decade. Tomlinson’s case against Jamaica predates ECADE’s action and is being fought without their direct help.
Activists in Dominica, home to 72,000 people and independent since 1978, believe that momentum is on their side. “One of the things that is in our favour is that there is now precedence from the Belize, Trinidad [and now the Antigua and Barbuda, and Saint Kitts and Nevis cases]. It should be easier for the judge to make a decision and refer to the points of those cases,” says Daryl Phillip, executive director of Minority Rights Dominica, the organization that is leading the court challenge there.
Still, it’s far from clear that all the decisions will favour LGBTQ+ people. While many of the countries involved share courts of appeal and legal traditions, each works under a distinct constitutional structure. Some states’ constitutions have slightly less expansive provisions around equal rights, which would work against a discrimination claim. Some states also have “savings clauses” in their constitutions that insulate pre-independence laws from court challenges.
All of the islands, except Jamaica, and Trinidad and Tobago, share the Eastern Caribbean Supreme Court (ECSC), based in Saint Lucia, which hears constitutional challenges first. Four states—Belize, Barbados, Dominica and Guyana—have adopted the Caribbean Court of Justice (CCJ)—based in Trinidad and Tobago—as their final court of appeal. All the other former British colonies still take their final appeals at the Judicial Committee of the Privy Council in London, U.K., a relic of the colonial era.
“We are hopeful that a decision in Antigua, which set such a high precedent on everything we challenged, will be a mark to all the other countries and the decisions to come out,” says Kenita Placide, executive director of ECADE, who lives in Saint Lucia.
Antigua and Barbuda, which has a population of about 100,770, may have had one of the easiest paths to success. The country’s constitution has a comprehensive equal treatment clause, and the government, led by Prime Minister Gaston Browne since 2014, declined to defend the sodomy statute in court and has not announced plans to appeal the decision, which came into effect immediately.
In other states, the fight hasn’t been so simple.
Tomlinson’s long battle against Jamaica’s sodomy law began in 2012 when he filed a petition with the Inter-American Commission on Human Rights, a body of the Organization of American States, which has the power to hear complaints, investigate them and lean on states to remedy situations. He filed a complaint in Jamaica’s domestic courts in 2015, but that case has been held up in procedural delays ever since. Tomlinson’s highly public strategy in launching his cases may have contributed to delays, by provoking religious and anti-LGBTQ+ groups to apply to be heard as intervenors in his cases.
“Every time we launch one of these cases, when the church groups get wind of it, they apply to be interested parties and gum up the system. That’s what happened with my case in Jamaica. It becomes a circus,” Tomlinson says. The country, with a population of almost three million, is the largest of the former British colonies in the region.
By contrast, ECADE has attempted to keep much of its work in the region more discreet, so as to avoid attracting the attention of religious groups who might try to intervene. Even with most of its cases already heard, the organization is reluctant to publicize details, including who it is partnering with in each country and which judges heard the cases.
Placide says they only make media announcements at the time of the decision itself. “We are trying to keep the pressure off the judiciary and them being focused on the case,” she says. “We have seen two things in our strategy work: One, we do not launch our cases in the media. Two, we engage with community to create that buy-in and show that the organization in the country was part of the filing with the individual. We also look at the advocacy and security arms of it, as well as the communication arm.”
Security is also a major concern for claimants pursuing these cases. The parties in the Saint Vincent and Grenadines case are both nationals who have left the country due to persecution at home, so they were freer to use their names publicly. But for those who still live in the region, being identified with these cases can provoke discrimination and violence.
The claimant in Dominica was given special dispensation by the judge to remain anonymous in the public record due to the danger he would face being associated with the case.
“We had to have a special audience with the judge, to ask her to hold back the name of the claimant. Because if it ever comes out, the person would be known and face some adverse social backlash,” Phillip says.
While the dream of repealing sodomy laws seems like a huge step for the region, some activists are already talking about next steps to promote other forms of equality including marriage, anti-discrimination laws and gender identity rights for trans people. Tomlinson has already filed a complaint with the Inter-American Commission on Human Rights seeking to order Jamaica to recognize full marriage equality for same-sex couples, noting that the commission already ruled in 2018 that states have an obligation to allow same-sex marriage.
Tomlinson says the case for equal marriage may be easier to make to the public than the case for legalizing gay sex.
“The conventional wisdom is, ‘Oh well we need to do this first,’ but maybe we can leapfrog these things,” he says. “A single gay man is more threatening than a married gay couple, because maybe he’s going to come after you, or your husband, or that trope of coming after your child.”
When Tomlinson launched the marriage equality case, he found more support from newspaper editorials. “That was proof to me that people generally can relate to love more than they can relate to sex. They get love, they get intimacy. They just can’t wrap their heads around the mechanics of gay sex,” he says.
Tomlinson’s argument is not one everyone finds convincing, however.
“I think talking about marriage is like opening a can of worms. It’s exactly what is causing the churches to raise fear in the people,” Placide says. “It is easy to say something looks easy when you’re living in the Global North, compared to the Global South and sitting in the pressure that it creates. I have been held at knifepoint for speaking about LGBTQ+ issues on television. It’s not something I take lightly. People have been stoned and abused. We are pushing the boundaries, but we understand where we cannot push too hard,” she says.
The state of the fight for decriminalization in Caribbean countries
Antigua and Barbuda
The Eastern Caribbean Supreme Court ruled on July 5 that the country’s buggery and what’s defined as “serious indecency” laws were unconstitutional and void, with immediate effect. It also found that the constitution’s prohibition on discrimination by “sex” included sexual orientation and gender identity. The case had been filed by Eastern Caribbean Alliance for Diversity and Equality and the local group Women Against Rape. The government did not defend the law and has not announced plans to appeal.
Two separate cases are winding through international bodies seeking to have the country’s sodomy law struck down.
The first, filed by trans activist Alexa Hoffmann, was filed at the Inter-American Commission on Human Rights, the arm of the Organization of American States that can hear complaints, investigate them and lean on states to remedy situations. Hoffmann filed her complaint there, arguing that Barbados was in violation of the American Convention on Human Rights. The commission has previously ruled that sodomy laws violate the convention in Maurice Tomlinson’s case against Jamaica. While the commission can’t typically compel a government to act, Barbados is unique among Caribbean countries in that it accepts the compulsory jurisdiction of the Inter-American Court of Human Rights, which is based in Costa Rica. Hoffmann’s complaint to the commission is the first step in bringing a case to that court.
However, Barbados accepts the Caribbean Court of Justice as its final court, and in 2018, that court ruled that “savings clauses” are no longer in effect for its member states, a point which was the foundation of Hoffmann’s complaint. Barbados has been trying to quash Hoffmann’s complaint, arguing that it should therefore be heard in domestic courts, since the law is newly available to be challenged. Hoffmann has declined to withdraw her complaint.
Meanwhile, with the opening presented by the CCJ “savings clause” decision, the Eastern Caribbean Alliance for Diversity and Equality filed its own challenge in Barbados’ domestic courts, which was heard earlier this year. A decision is expected sometime in the next several months.
Beyond the courts, the current government of Barbados seems somewhat sympathetic to LGBTQ+ rights. Prime Minister Mia Mottley, elected in 2018 and whose party controls every seat in the parliament, has spoken positively about LGBTQ+ rights, even as her government has refused to touch the sodomy law. In 2020, she announced that she would introduce same-sex civil unions, while holding a referendum on same-sex marriage. Neither has happened. That year, her government passed an employment non-discrimination law that included sexual orientation but excluded trans people.
Minority Rights Dominica is spearheading the court challenge against the island’s sodomy law, which is expected to be heard at the Eastern Caribbean Supreme Court in September 2022. Dominica has no “savings clause” in its constitution, and any final appeal would be heard at the Caribbean Court of Justice. Prime Minister Roosevelt Skerrit, in power since 2004, has vowed in the past to defend the buggery law, even as he has claimed that it is not being enforced.
Eastern Caribbean Alliance for Diversity and Equality is spearheading the challenge to Grenada’s law, which is expected to be heard at the Eastern Caribbean Supreme Court later this year. Grenada’s constitution does not include a “savings clause” that would insulate the sodomy law from challenge. Any appeal would be heard at the Privy Council in London, U.K.
The only country with a sodomy law in the continent of South America, no court challenge to the sodomy law has been filed at this time in Guyana. However, LGBTQ+ activists there scored a major win for the whole region when they brought a case against a law banning crossdressing to the Caribbean Court of Justice. Not only did that decision strike down a law that was used to harass trans people, but that was the case that led the CCJ to rule that “savings clauses” were no longer in effect. That paved the way for challenges to laws in Barbados and Dominica, the other countries that accept the jurisdiction of the CCJ.
Guyana’s parliament formally repealed the crossdressing law in 2021, but did not address the sodomy law.
Lots of legal intricacies here. Maurice Tomlinson’s fight against Jamaica’s sodomy law goes all the way back to 2012, when he filed a challenge at the Inter-American Commission on Human Rights. The commission eventually ruled in late 2020 that the sodomy laws contravene the American Convention on Human Rights, but was unable to compel the Jamaican government to act.
Jamaica’s Bill of Rights contains a “savings clause” that specifically protects laws regarding sex offences, including sodomy, that predate the Bill of Rights. But Tomlinson filed a case with the Jamaican Supreme Court in 2015 arguing that the savings clause no longer applies because the government amended the sodomy law to stiffen its penalties in 2012, effectively making it a new law. The Jamaican government has managed to stall with procedural tactics to this day.
Tomlinson won an initial victory in January 2022, when the court denied the government’s move to have the case thrown out due to the savings clause. The court agreed with Tomlinson that the issue of whether or not the law is “saved” ought to be decided by the same judge who ultimately decides if the law is unconstitutional. The government has filed an appeal of that January ruling that will be heard next year. Only once that question of whether the law is saved is resolved—and only if it’s resolved in Tomlinson’s favour—will the court deal with the substance of the sodomy law.
Given how tenacious the government has been in protecting these anti-gay laws, any decision is likely to be appealed to the Privy Council in London, U.K. Unlike the Caribbean Court of Justice, the Privy Council has recently ruled on a narrow question that “savings clauses” are still in effect in the former colonies that have them, though it hasn’t ruled on whether old laws that were later adjusted are similarly “saved.”
Saint Kitts and Nevis
The Eastern Caribbean Supreme Court ruled on August 29, 2022, that the country’s sodomy laws violate the constitution’s provisions for the right to privacy and freedom of expression and were “null and void and of no force and effect to the extent that it criminalizes any acts constituting consensual sexual conduct in private between adults.” Sections 56 and 57 of the Offences Against the Person Act penalized “the abominable crime of buggery” and the related offences of “assault with intent to commit” buggery and “indecent assault upon any male person” with imprisonment of a period not exceeding 10 years with or without hard labour. Buggery is defined as anal or oral intercourse by penetration of either sex. The case had been brought by citizen Jamal Jeffers with the Saint Kitts and Nevis Alliance for Equality with the help of the Eastern Caribbean Alliance for Diversity and Equality.
A court case was brought by the Eastern Caribbean Alliance for Diversity and Equality and local partners earlier this year at the Eastern Caribbean Supreme Court; a decision is expected in the coming months. There is no “savings clause” in its constitution. Any appeal from these countries would go to the Privy Council in London, U.K.
Saint Vincent and the Grenadines
A court case was launched in 2019 by two queer Vincentian citizens, Javin Johnson, who claimed asylum in the U.K. in 2017 and lives there, and Sean Macleish, who currently resides in the United States. After years of delays due to technical questions, the substantive case is expected to be heard near the end of this year at the Eastern Caribbean Supreme Court. There is no “savings clause” in the constitution and any appeal would be heard at the Privy Council in London, U.K.
Already struck down: Belize, and Trinidad and Tobago
In 2016, Section 53 of the Belize Criminal Code, which stated that “every person who has carnal intercourse against the order of nature with any person … shall be liable to imprisonment for 10 years” was ruled by Belize’s Supreme Court to be in violation of the country’s constitution. In 2018, Trinidad and Tobago’s High Court decriminalized consensual sexual relations between adults of the same sex in a ruling that modified the Sexual Offenses Act, which had been passed in 2000.