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12 November, 2013

Gay Day at the CCJ: Pt. 2

Filed under: Belize,Caribbean,CARICOM,courts,human rights,Jamaica,laws — caiso @ 23:39
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Maurice Tomlinson & Anthony Gifford QC “stand” at Kingston’s Emancipation Park, Sept. 2010

Today the Caribbean Court of Justice, sitting in its original jurisdiction, heard arguments via teleconference by legal representatives of Maurice Tomlinson, the state of Belize and the state of Trinidad and Tobago. Lord Gifford, QC, representing Tomlinson, petitioned the court to allow Tomlinson leave to bring a case before the court, seeking redress for violations of his free movement rights guaranteed under the Revised Treaty of Chaguaramas to nationals of CARICOM member states. He alleges that sections of the immigration laws of Belize and Trinidad and Tobago which prohibit the entry of homosexual persons into those countries, violate his rights. The hearing today was simply to determine whether Tomlinson, a homosexual, can bring the case which, if granted permission, he will bring in the near future.

Gifford presented his case that leave should be granted, to which Belize and Trinidad and Tobago responded. Gifford was then allowed to respond to the states’ arguments. Both Belize and Trinidad and Tobago argued that Tomlinson should not be granted leave to bring the case. The Solicitor General of Jamaica also submitted a brief in the case which makes the case that Tomlinson is not eligible for leave.

Belize, by its lawyer, Ag Solicitor General Nigel Hawke, argued that the term ‘homosexual’ as used in the Belize Immigration Act referred to a homosexual prostitute and not just a homosexual, although the Act prohibits ‘homosexuals’ on a plain reading of it, naming as prohibited immigrants “any prostitute or homosexual or any person who may be living on or receiving or may have been living on or receiving the proceeds of prostitution or homosexual behaviour” (5(1)(e)). This prompted Justice Nelson to press Gifford whether the law must indeed be read that way, whether homosexual behaviour is a sort of occupation, something you can live off of. Hawke argued that his interpretation reflected the Belize government’s position and referred to the written testimony submitted on behalf of the Belize government, saying that Belize Immigration Authorities do not prevent homosexuals from entering Belize. He referred to the fact that Tomlinson himself had entered Belize four times.

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Appearing for Belize Nigel Hawke

Tomlinson says in his written testimony that he had been to both Belize and Trinidad and Tobago on multiple occasions, prior to knowing of the laws. He says that since he came to know of them, he has had to refuse invitations to visit both countries. Gifford relied on cases to show that even if the government claimed they didn’t enforce a law, it could still operate to restrict people’s rights. The essence of the argument runs that the law makes de facto criminals of homosexuals who enter, forcing some people to alter their behaviour. In Maurice’s case the behaviour which was altered (travelling to Belize and to Trinidad and Tobago) was a behaviour he was entitled to by right as a national of a CARICOM member state.

Gifford also cited the little-known CARICOM Civil Society Charter and its equality and dignity provisions, but the Justices questioned its binding nature on the states.

The court seemed unsatisfied by the Belize government’s written evidence that they didn’t prohibit homosexuals, questioning Hawke as to whether they should require further evidence. Justice Nelson even asked Hawke what was the relevance of state practice, inviting him to respond to Gifford’s arguments that the law in and of itself restricted Tomlinson’s rights, irrespective of whether the state enforced it or not. Hawke contended that Belize’s practice of not prohibiting homosexuals evidences the Belize government’s interpretation of the law as argued by Hawke.

When asked whether the court should issue a declaration that the allegedly offending section of the law referred to homosexual prostitutes only as argued by Hawke, Hawke responded that that wasn’t necessary because the Belize government already understood it to mean that.

Also on the legal team for Belize were Crown Counsels Iliana Swift and Herbert Panton, and for Tomlinson Anika Gray.

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Appearing for Trinidad & Tobago Seenath Jairam SC

Trinidad & Tobago through its lawyer, Law Association President Seenath Jairam, SC, appearing with Wayne Sturge and three other attorneys, argued that what is relevant in determining whether a treaty had been violated was the impeached state’s practice. He argued that Trinidad and Tobago had a policy of non enforcement of the law, which he interpreted to refer to homosexuals and not homosexual prostitutes as Belize argued. The allegedly offending provisions in both laws (primarily sections 5(1)(e) of the Belize Immigration Act and 8(1) (e)of the Trinidad and Tobago Act) are almost identical. Jairam supported his arguments with such cases as the recent Shanique Myrie decision, which was repeatedly referenced in the proceedings.

Jairam argued that because Trinidad and Tobago’s state practice was such that it didn’t prevent homosexuals from entering and that because Tomlinson was not prevented from entering before, the application was “an academic exercise”. Tomlinson will not ever be denied entry simply by virtue of being a homosexual, he declared. He drew a comparison to hanging, saying that Trinidad and Tobago had laws on its books which allowed hanging but that they nonetheless did not hang. When asked by the court whether that meant that hanging was illegal, he responded that that was a matter for the constitutional court. He alluded to the fact that governments had financial constraints and that there were costs involved in repealing laws. (Incidentally that has not prevented Trinidad and Tobago from repealing other laws it wished to repeal.)

Jairam argued further that Tomlinson could have applied for a special permit from the Minister responsible for immigration as Sir Elton John did back in 2007. Gifford had earlier stated there is no waiver available to homosexuals of the prohibition in the law, and pointed the court to the section of the Trinidad and Tobago Immigration Act which permits the Minister responsible for Immigration to grant such a  permit. While Gifford argued the permit is limited to two classes of prohibited immigrants specifically mentioned in a subsection of the law, who not include homosexuals, Jairam stated the law confers broader powers and the subsection merely qualifies entry conditions for those two classes.

Justice Nelson expressed concern over whether a policy was sufficient protection of the rights guaranteed to nationals of CARICOM countries, asking rhetorically, “what happens when government changes?” He also asked Jairam non rhetorically whether the court should strike out the allegedly offending sections since they weren’t enforced. Jairam responded, to the bemusement of many in the court, that the court should not strike out the sections because that might allow terrorists to enter the country. In back and forth questioning with the justices, he conceded that both the Belize and Trinidad and Tobago laws were likely enacted “when people were  homophobic”, and that has changed.

The Justices asked all parties whether there was case law on the homosexual provisions of the immigration laws, but none had any to offer. Both states argued that their statutes on freedom of movement for skilled nationals allow their entry notwithstanding other laws, such as the homosexual prohibition, and Tomlinson as a lawyer could have availed himself of such a provision for entry. But the Court was clear that the case was not about entry of a skilled national and that such entry was in the specific context of employment and skill certification. This prompted a series of questions as to whether a prostitute could enter to deliver a lecture instead of to acquire earnings through his/her trade.

Both Belize and Trinidad and Tobago argue that Tomlinson’s rights have not been breached as he has not been denied entry and that is the Treaty has therefore not been engaged. Gifford  responded to the State’s arguments by reiterating that a policy was just a policy and was subject to change with any given government. He also reiterated that the mere existence of the laws, whether they were enforced or not, was sufficient to restrict a person’s rights. It’s like putting up a sign that says “No homosexuals”, regardless to what your actual practice is.

The court reserved its judgment which we expect will be delivered tomorrow we have learned may come down any time over the next three months.

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Justices on the leave hearing panel were back row, left Jacob Wit (Netherlands Antilles) and Winston Anderson (Jamaica) and front row: Rolston Nelson (Trinidad & Tobago), CJ Sir Dennis Byron (St. Kitts & Nevis) and Winston Saunders (St. Vincent & the Grenadines)

Listen for yourself – though the audio’s really bad in parts:
CCJ Application No. OA 001/002 of 2013 Maurice Arnold Tomlinson v. The State of Belize & v. The State of Trinidad and Tobago

MORNING SESSION

AFTERNOON SESSION

 

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Gay Day at the CCJ: Pt. 1

Quite a bit of sensation and misreporting has been generated in the local, regional and international media about a proposed legal challenge to the immigration law of Trinidad & Tobago. A local television station reported that “An AIDS group in New York is suing the Government of Trinidad and Tobago for prohibiting the entry of homosexuals to the country…so offensive is the law that AIDS Free World has filed suit in the Caribbean Court of Justice…demanding that the discriminatory provision be expunged…The group says the government…does not have a leg to stand on and it is confident of…possibly changing the laws of this country”. Here are some clarifications of what’s actually taking place.

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What is this case about; and who is bringing it? There are in fact two cases. They are being heard jointly. A Jamaican national (who is also a gay activist and lawyer and works for an international organization, AIDS Free World, which is supporting his challenge and has been closely associated with the case in the media) is using the provisions of CARICOM’s Revised Treaty of Chaguaramus to make two similar claims with regard to the states of Belize and Trinidad & Tobago. Maurice A Tomlinson is arguing that the immigration laws of each nation which make homosexuals prohibited immigrants violate the freedom of movement provisions he ought to enjoy as a national of Jamaica under the Treaty, as well as his right to not be discriminated against based on his nationality by either state. Under the Treaty, disputes concerning its provisions and related rights are heard by the Caribbean Court of Justice (CCJ) sitting in its “original jurisdiction”. (The CCJ has also been given appellate jurisdiction as the final court for some Caribbean nations, including Belize; but it is not acting in that capacity here.) When an individual CARICOM national like Tomlinson seeks to bring a claim that their rights under the treaty have been negatively affected and that person’s state has either failed to bring the claim to the court on their behalf (something Jamaica did with Shanique Myrie[*]) or has agreed that the national should do so herself, the CCJ holds a hearing to listen to both sides and make a determination if these conditions have been met and if it is in the interest of justice for the national to bring the case directly to the Court. If it finds so, the Court can grant the applicant leave to do so. A decision is expected to be rendered at the conclusion of Wednesday’s proceedings.

The case is an innovative use of the CARICOM treaty to advance LGBTI equality and challenge some of the domestic laws that make LGBTI persons unequal citizens which exist in all CARICOM states. Because the provisions of the immigration laws being challenged target people who are not citizens of the respective countries, the non-nationals the laws affect are the people in a position to challenge them, and the Chaguaramas treaty provides such an opening for CARICOM nationals.

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Courts also allow parties other than a complainant to play a role in matters before the Court when they have a substantial legal interest that may be affected by the Court’s decision. Free movement of lesbian, gay and bisexual persons between CARICOM member countries, including to Trinidad & Tobago, where its secretariat is located, is critical to the mission of the 16-year-old Caribbean Forum for Liberation and Acceptance of Genders and Sexualities, a regional LGBTI advocacy network involved with such travel multiple times each year. CariFLAGS plans to become a party in the case, with the Court’s permission. CariFLAGS and CAISO will play an active role in educating the public about the case and the law. On Monday November 25 at 6:00 pm, a public forum will take place (tentatively at NALIS at Abercromby & Hart Streets in Port of Spain) with this goal. For updated information visit: www.facebook.com/caiso/events.

What is the suit seeking? Can the CCJ change our laws if its not our court of appeal? If the CCJ finds that Tomlinson’s rights have been infringed, as it did recently in the case of Shanique Myrie*, it is empowered under the Treaty to award damages as compensation and to make a declaration that the domestic immigration laws violate community rights. Because CARICOM countries have agreed, in signing the Treaty, to be bound by decisions of the CCJ in its original jurisdiction, Trinidad & Tobago and Belize could be subject to sanctions from CARICOM if they leave the laws unchanged after such a Court ruling. However, acting in its original jurisdiction, the CCJ cannot alter or strike down national laws the way an appellate court could.

images 10.17 PMWhats does the immigration law do, and what is Governments position on it? Trinidad & Tobago’s immigration laws, whose history dates back to before Independence, retain several antiquated provisions that reflect a historic preoccupation of many immigration codes around the world with keeping out disease, deformity, dependency, deviance, depravity and the darker-skinned. US immigration law, e.g., until 1990 had similar provisions excluding homosexuals, and still maintains references to “moral turpitude”. Our laws deem as “prohibited immigrants” homosexuals, as well as those who live off their earnings and those reasonably suspected of coming or attempting to bring others into the country for homosexual purposes. Each of these provisions is applied in the same stroke to “prostitutes” (Subsection 8 (1) and paragraph (e) of the Immigration Act of 1969). The laws also provide for the deportation of persons who practise, assist in the practice, or share in the avails of homosexualism (Subsection 9 (4) and paragraph (a)). Other groups deemed prohibited immigrants in the law are “persons who are idiots, imbeciles, feebleminded…suffering from dementia and insane…who are likely to be a charge on public funds…dumb, blind or otherwise physically defective” (Subsection 8 (1), paragraphs (a), (c) and (h)).

Ministry of National Security officials have stated that a committee reviewed the immigration law in 2010 and recommended legislative removal of the homosexual provisions; and an Immigration Division spokesperson has told the media that entrants are not questioned about their sexual orientation. When the Patrick Manning administration was pressed by Pastors Winston Cuffie, Terrance Baynes (later appointed a People’s Partnership senator), Archdeacon Phillip Isaac and other Tobago clergymen to enforce the law against Elton John in 2007, Trinidad & Tobago was lampooned by US television comedians, Chief Secretary Orville London declared “we in the Tobago House of Assembly are very clear that we do not support any ban on any individual on these grounds”, and the central government issued John a waiver to enter and perform at the Tobago Jazz Festival. But no bill has been introduced to amend the law, which continues to be an international embarrassment and to stigmatize LGBTI and other people, and 8(1)(e) could potentially be invoked by any zealous immigration officer.

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[*] This is not the first time a CARICOM national has petitioned the CCJ for redress for violation of Treaty rights. The Court recently ordered Barbados to pay Jamaican national Shanique Myrie BDS$77,240 as compensation for violation of her right to free movement when Barbados immigration authorities detained her upon entry, subjected her to taunts and cavity searches, kept her overnight and deported her to Jamaica the following day. All CARICOM nationals share these rights within the region under the Treaty.

24 December, 2011

Make the Yuletide gay

Filed under: community organizing,history,Jamaica — caiso @ 18:37

To all our followers – Occupy Christmas. Turn water into wine; throw the moneylenders out. Have yourself a merry little Christmas, make the yuletide gay, and gather friends near who are dear to you. It can be a tough season for us, so remember: It gets better. And give us a shout if it doesn’t. Next year we’ll make history together, we think. Even if it’s a small step. Look at the Jamaica election! But that’s only if you join with us and guide us. The reason for an organization is to things together that we can’t do alone. Look out and sign up for our session early in the new year on how you can make change. Anyhow, go finish paint or bake or wrap or hang curtain. Be safe. And arrive alive (even if is not you driving). Bless!!

17 October, 2010

We take a pride in our liberty

Some dangerously out-of-touch “ex-gay” foreigners think there’s growing tolerance of GLBT people in T&T, so they’re coming here on an evangelical mission Oct. 22-29 to try to turn back the clock. And they’re going after vulnerable young people.

Sexual citizenship & nation-building in T&T. CAISO has been successful in our short year of existence in helping foster openings for inclusion of sexual orientation in many areas of national life in our independent, postcolonial nation of Trinidad & Tobago. Over the past year we have seen such national institutions and leaders as the Chief Justice, the Prime Minister, the Elections & Boundaries Commission and the Equal Opportunity Commission, as well as the University of the West Indies, church leaders and the national media, articulate an indigenous vision of equality, citizenship and democracy that includes people of different sexual orientation and raises questions about how we protect such persons from violence and discrimination. Aren’t you proud of your nation? We have also helped promote a robust conversation about how GLBT people here find spaces to practise the faith of their choosing. What has distinguished local engagement with issues of sexual citizenship and faith community from the kinds of advocacy for “gay rights” that take place in many other settings is that ours has been a fundamentally nation-building approach.

US Christian fundamentalists export a toxic gospel overseas. Yet, because of the promise that CAISO and our nation have shown for expanding the embrace of human rights and inclusion, Trinidad & Tobago has become a key target for one of the global anti-gay evangelical ministries whose fundamentalist gospel has become a new export of the United States. Some have compared these Christian Right Wing sects to the proponents of radical Islam, because they both see their mission in terms of a “culture war” against modern developments. “These fundamentalists are no different to the Iranian Ayatollahs”, South African activist Zackie Achmat wrote recently. These evangelizing ministries are deeply focused on regulating sexuality, and they primarily target poor women and GLBT people’s rights by whipping up fears about abortion, same-sex marriage and “same-sex parenting” as threats to the “traditional” family, even in places like Trinidad & Tobago where same-sex marriage is not even being debated. Their danger to the lives of GLBT people is well documented and real. What we’ve seen in Uganda alone, where these ministries have held conferences and trained local pastors and legislators, has been a destructive national campaign of public homophobia that has pitted Ugandans against each other and detracted from other national priorities. They helped draft a stunning piece of legislation that would imprison families for not turning in gay members, execute gay people with HIV for having sex, and also impose a death sentence on people for a second offence of homosexuality, which includes merely touching someone of the same sex in an attempt to become sexual.

His Way Out director Philip Lee received by the Head of State during the group's 2009 Jamaica visit (Photo: Office of the Governor General of Jamaica)

His Way Out targets T&T to turn back social progress. One US anti-gay ministry, His Way Out, based in Bakersfield, California, has set its sights on the Caribbean. After a few visits there, they now claim to have a base in Guyana; and during a high-profile visit to Jamaica in 2009 held a meeting with the head of state, Governor General Patrick Allen. They have publicly announced a mission to our shores from October 22 to 29 because they “believe…it is time to combat what seems to be a growing acceptance of homosexuality in Trinidad”. His Way Out is one a number of troubling ministries arising in the US and Canada that spread a gospel which acknowledges that many people experience same-sex desire, but preaches that such sexuality is disordered, that homosexual acts are unChristian, and that gay people should therefore live lives of self-denial, penitence and prayer “whereby sin’s power is broken”. They typically target young people struggling with their sexuality, and adults who have been hurt by other gay people or who experience deep conflict between their faith and their sexuality. His Way Out is part of the Exodus Global Alliance network, with which they claim to be partnering “in the development of ex-gay ministry in the Caribbean”. They also fundraise aggressively. Their activities here will include a $165 prayer breakfast. Exodus’s mission is to “effectively communicate the message of liberation from homosexuality”, and they believe Christian ministry can effect “reorientation of same sex attraction” and “growth towards Godly heterosexuality”. Prominent leaders of Exodus have since renounced its views, returned to an active gay life, and apologized for the harm they caused.

October 22-29 “sexual health” mission planned. His Way Out Ministries (HWOM) is led by Phillip Lee, a 60-year-old gay, HIV+ man who, by his own testimony, spent the 1970s and ’80s engaging in what he now regrets was destructive sex, partying and drug use, and who is coping with this personal experience by evangelizing others who experience same-sex desire about the unhealthiness and ungodliness of homosexual activity. As they have elsewhere, His Way Out is using a framework of “health” to characterize their messages about sexuality, stigmatizing what they hold out as “gay” sexual practices as unnatural and disease-prone. From November 22nd to 29th, HWOM plans youth-targeted events at Naparima Girls High School, the University of the West Indies at St. Augustine, and St. George’s College; media appearances on CNC3, I-95 and other stations; and a meeting with Louis LeeSing, ostensibly in his capacity as Mayor of Port of Spain. One of their advocacy strategies will be to disseminate literature (which, according to HWOM visit organizer Dr. Judith Henry, is being prepared by Dr. Garthlyn Pilgrim) to young people and others, identifying anal intercourse and rimming as gay male sexual behaviours, and linking these to health risks.

Standing up for national values. The visit is an occasion for those of us committed to building a local culture of inclusion and progress in Trinidad & Tobago to stand together and stand up for our values around sexuality and citizenship, and to contrast them with destructive messages being exported by the United States Christian Right in the name of Jesus. The timing of His Way Out Ministries’ visit could also not be more out of touch. It follows a wake of suicides by young people across the US who were made to feel that their sexuality was bad, included among them young people from the Caribbean who moved to the United States. It follows on a high-profile scandal involving Eddie Long, Bishop of the AfricanAmerican New Birth Missionary Baptist Church, one of the largest Christian Right congregations in the US. Long, who runs an ex-gay ministry at his church and organized a public march against gay rights, has been accused of grooming adolescents he recruited from his youth ministry to have sex with him, one a young man of Trini heritage. We are planning at least five responses during the week of the HWOM mission to demonstrate our local values in relationship to sexual inclusion.

Youth voices. Public messages that reinforce stigma against same-sex desire, and that teach that sexuality is pathological, damage young people’s healthy sexual development. “Spiritual violence” is how this shaming is characterized when done with the tools of faith. Public health experts in the region have for years linked stigmatization of same-sex sexuality to the Caribbean’s runaway rates of HIV. Fear- and damnation-based messages are not effective or humane approaches to sexual health education: young people need proven, science-based HFLE methods and compassionate pastoral care that affirms their self-esteem and God-given sexuality. More importantly, there is scientific consensus that young people cannot change their sexual orientation. Young people in Trinidad & Tobago are mobilizing across sexual orientation and faith to provide an alternative, homegrown vision of inclusion and hope to their peers. They will be sharing this vision of human sexuality, and democratically raising questions at HWOM’s youth-targeted events on October 23 and 28, in ways that interrogate the vision and ideology of our foreign visitors. Contact Brandon O’Brien: nova.crux@gmail.com.

Media visibility.Throughout the week of HWOM’s visit, as well as before and after, local advocates of a homegrown, inclusive vision of sexual citizenship will take that message to the media. It is, after all, this proud local culture of inclusion and partnership between GLBT and non-GLBT people that is the real story behind HWOM’s evangelizing mission here to change things. The local goal is also to “change the channel” on a foreign group intent on cynically sowing controversy and division here using the red herring of same-sex marriage, when no such local debate exists.

Accountability. Some local institutions and offices, including ones responsible for the welfare of young people, appear to have readily affiliated themselves with HWOM, their visit and their message – a message whose content has been linked in the United States to teenage suicide as well as to anti-gay bullying and violence by young people, and which seems clearly inconsistent with sound

Photo: Keith Matthews, Guardian

public health practice or the new thrust to aggressively address stigma and discrimination in T&T’s national HIV response. Those associated with the visit include Port of Spain Mayor Louis LeeSing; Naparima Girls High School, a Presbyterian assisted secondary school; St. George’s College, a government secondary school; and the InterVarsity Christian Fellowship. These institutions and related leaders (Principals Patricia Ramgoolam and James Sammy, and Moderator Elvis Elahie), as well as PNM Political Leader Keith Rowley, Education Minister Tim Gopeesingh, Youth Affairs Minister Anil Roberts, Health Minister Therese Baptiste-Cornelis, Gender Minister Mary King, People & Social Development Minister Glenn Ramadharsingh, National AIDS Coordinating Committee line Minister Rodger Samuel, NACC Chair Angela Lee Loy, and National Parent Teachers Association President Zena Ramatali will be engaged regarding their commitment to protecting young people from harm, to ensuring scientifically sound health, family life and HIV education, and on their understanding and position with respect to the beliefs and practices of HWOM regarding young people and their sexual development. A few prominent local individuals also seem to have been included in the planning of the HWOM visit. It is quite curious whether they would publicly support legislative repeal of sections 8(e) and (f) of the Immigration Act, which prohibit entry into Trinidad & Tobago of Lee and similar homosexuals who are not citizens or residents here.

Public education. Efforts will be made to make available for public viewing dramatic and documentary films that treat in educational and solution-seeking ways with homosexuality, discrimination, mental health and faith. These include “Children of God” by Kareem Mortimer, a Bahamian filmmaker with Trinidadian heritage, which won both major prizes at the recent Trinidad+Tobago Film Festival. The film, set in the Caribbean, dramatizes the violence and hypocrisy of religious homophobia. T-shirts with affirming messages about sexual inclusion and faith are also being produced. Get yours!

Take a pride in your liberty! Get involved in protecting the dignity and respect of all Trinbagonians. Contact us at 758-7676 or caisott@gmail.com, or follow us at www.facebook.com/caiso.

4 July, 2010

J-FLAG stands up to CARICOM

Earlier today, the Jamaica Forum for Lesbians, All-sexuals and Gays (J-FLAG) mounted a “Stand Up to CARICOM” across from the entrance to the Hilton Rose Hall Resort, Montego Bay, site of the 31st CARICOM Heads of Government meeting, “because of the continued presence of anti-buggery laws in 11 of the 14 member states in CARICOM which contribute to discrimination, marginalization and other serious human rights violations of CARICOM citizens”. Members of the group bore placards calling for the immediate repeal of such laws and the full integration of LGBTI citizens into the CARICOM family”. The peaceful protest lasted 17 minutes before police professionallly asked the group to relocate due to security concerns.