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10 March, 2014

Strengthening Human Rights Protection through Constitutional Reform

Three specific recommendations for constitutional change were submitted
jointly to the Trinidad & Tobago Constitution Reform Commission by

Richie Maitland, Staff Attorney, CAISO • Lynette Seebaran Suite, Board Chair, ASPIRE • J Carolyn Gomes, Executive Director, CVC • Dona Da Costa Martinez, Executive Director, Family Planning Association • Luke Sinnette, Executive Member, Friends for Life • Jeremy Edwards, Director, Silver Lining Foundation • Stephanie Leitch, Founder, Womantra • Sharon Mottley, Director, Women’s Caucus of Trinidad & Tobago

in response to the Absence of Human Rights Recommendations in the
27 December 2013 
Report on the National Consultation on Constitutional Reform

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26 February 2014

“Several of our groups’ stakeholders and others in our communities participated in and contributed to the national consultations throughout 2013, where we noted the dominance of two concerns we share deeply:

a) the weakness or ineffectiveness of mechanisms for government and institutional accountability; and

b) that particular groups advantage members of their own unfairly, and respect for human dignity is selective and not universal.

Chapter 1 of the Consultation Report opens with observations about the vulnerabilities of citizens in small states to majoritarian democracies; that in Trinidad & Tobago “the state has emerged as a an agent of victimization”; and cites the need for more rapid development of a “a culture of scrutiny of public officials by dedicated institutions that are expected to play an enquiring role” (paras. 21-22, p. 6). These are fundamentally issues of human rights, an area in which the Commission Report, unfortunately, proposes no amendments to the Constitution (p. 13), and a dimension in particular need of strengthening in our national “political culture”, the concern with which the Report concludes.

We urge the following:

  1. Enshrinement within the Constitution of an independent National Human Rights Institution compliant with the “Paris Principles”, which would create an effective structural mechanism (unlike the Office of the Ombudsman, described as “ineffective”) to monitor, protect and promote human rights in Trinidad and Tobago, and entrench a national and institutional culture of respect for human rights, grounded in the Constitution
  2. Elimination altogether of the Savings Law Clause, Section 6, which the Report, without any discussion or explanation, recommends ((c), p. 13) continue to immunise from constitutional challenge any law in force prior to 1 August 1976 that violates fundamental human rights and freedoms
  3. Addition of “sexual orientation” and “gender” as prohibited axes of discrimination in the Bill of Rights, Section 4 – issues to which the Report affords significant importance and more attention than any other human rights consideration (p. 2; para. 14, p. 4; paras. 56-62, p. 12; p. 13).

(more…)

12 November, 2013

Gay Day at the CCJ: Pt. 2

Filed under: Belize,Caribbean,CARICOM,courts,human rights,Jamaica,laws — caiso @ 23:39
Lord+Gifford+Stand+with+Jalna+Broderick+JASL+Maurice+Tomlinson+AFW+Susan+Goffe+JFJ

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

 

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.

27 July, 2012

Joshua Hamlet, an unlikely voice for LGBT rights on an unlikely platform

We’re always talking about young people taking the lead on issues of sexual orientation and gender identity, and politicians acknowledging that the LGBT community needs protection against discrimination in Trinidad & Tobago. Just this week, we might’ve got both. At a People’s National Movement rally in St. Barb’s, Laventille, youth speaker Joshua Hamlet went on the podium to say that LGBT people need the Equal Opportunity Act, and that “we cannot make it about people (individuals), it needs to about the issues of the everyday person”.

Not only does this mean that people – especially young people – are taking stands in their own ways to speak out against discrimination on the basis on sexual orientation, but that politicians (at least within the PNM) can’t ignore that this is a real issue in our country. Remember in 2009 when their then Gender Minister and current Chief Whip, Marlene McDonald, said that they were “quite categorically” against dealing with our issues? Now these same issues are coming back on their own platform in a completely different way. CAISO has its own fair share of young members, and I speak not only as one of those youth but as someone who knows Mr. Hamlet personally. As a student, and activist and a friend, Joshua has always been the kind of guy that I thought our country needed on gender and sexual orientation issues, because of his insight and willingness to put himself out there for a cause no matter the arena, much like he has done here.

CAISO believes that every political party here in Trinidad & Tobago should be focusing on the issues of every single member of its society, and that the human rights of those members should not be ignored. And that is why it feels so good that a young man would stand from within a party of his own accord and say what he said. With the country approaching its 50th birthday, we should be talking about ways our country and democracy truly include every single person regardless to creed, race or sexual orientation. And it may very well be happening, in some small way, now.

We at CAISO salute you, Mr. Hamlet, for the courage to speak up on these issues in one of the places it matters the most. We truly hope that people in the PNM, and in fact every politician, is listening.

27 January, 2012

One letter can make a change

In the coming weeks our community will either make a difference in our own lives, or we will lose an opportunity of a lifetime. Parliament will come the closest ever in history to outlawing discrimination based on sexual orientation. They’ve made it clear this can happen BUT ONLY if you speak up for yourself. People with HIV and five old people have.

One letter can make a change.

Send the letter below or at this link to the Prime Minister’s Office. FILL IN YOUR NAME AND THE AREA OR CONSTITUENCY YOU LIVE OR VOTE IN.

Get people who love you to do the same. Or you can speak up in other ways of your choosing. Please forward and repost this. One letter can make a change. Watch this video.

 

Office of the Prime Minister

13-15 St. Clair Avenue

Port of Spain

Dear Madam Prime Minister and Members of Parliament:

At the June 2011 opening of Parliament, our President said, “Our policies and practices must reflect a determination to ensure equal opportunity for all of our citizens, regardless of political affiliation or any other subjective consideration.” 

What’s your position? Should legal protection from discrimination in employment, education, housing, health care and services be denied to any citizen of Trinidad and Tobago, based on whether they’re young, elderly or middle-aged, HIV-negative or not, heterosexual or not? Very shortly you will have a bipartisan opportunity to take an important and overdue step to advance Government protection of human rights in Trinidad & Tobago and bring our 49-year-old developing nation further into the 21st century. When the Equal Opportunity Act (EOA) comes before Parliament for amendment in the coming weeks, you can help add ageHIV status and sexual orientation to statuses it protects from unfair discrimination in employment, education and the provision of accommodation, goods and services.

Please don’t pick and choose which one(s) to add: Add all three. Discrimination is a cancer. Tolerating it against any group means politicians get to decide which minorities have rights and which do not, which human beings are worth less than others. All three statuses are used daily as grounds for unfair discrimination that offends the principles of equality on which our nation was founded. Such discrimination, when tolerated or excused by the State, robs people of their human dignity and citizenship in profound ways. You will have the opportunity to vote and show Trinidad & Tobago’s position on these matters to the world right around the time that we undergo our first comprehensive human rights review by the United Nations Human Rights Council.

The Prime Minister, the Leader of the Opposition and each member of Parliament can work and can engage others to ensure all three statuses are included in the Equal Opportunity amendment bill that Parliament passes. You will have the gratitude and support of thousands of citizens like me and the people in my life I love who are living with HIV, who are young, who are gay, and who are old, many of whom are afraid if they sign this letter they might lose their job, family support or public respect. The risk for discrimination is quite high for those the Equal Opportunity Act would protect if you add these three statuses. Yet, adding all three statuses to the bill together is hardly risky for a modern Parliament to do as an act of human rights leadership. It’s time we joined other great nations and set ourselves apart from the shameful ones that deny human rights and freedom of expression to their citizens, or that use the law to impose the rules of a particular faith on everyone.

Newspaper editorials, university researchers, legal and human rights professionals, leading civil society groups and Parliamentarians themselves have all spoken out against discrimination based on these three statuses and urged their inclusion in the EOA. I am adding my voice to theirs.

Yours truly,

Name:

Address:

Date:

10 August, 2011

Julian Kenny

Born in Woodbrook eight decades ago, Julian Kenny, the UWI professor and environmentalist who died yesterday, repeatedly stood up for the humanity of GLBT people, as a senator, a journalist and a scientist. He spoke out in the Senate about the exclusion of sexual orientation from the Equal Opportunity Act. Most recently, from October 18 to November 8 of last year, he authored an important four-part series of newspaper columns on the natural science of sexual orientation. Here he is writing in his May 23, 2007 Express column, titled “Genes for ignorance, bigotry?”.

Given the millennia of occurrence of homosexuality in humans, and amongst many mammals and birds, it is not unreasonable to assume that there is probably a strong genetic component, possibly even of more than one gene interacting with others, that express themselves to varying degrees as human homosexual behaviour in all its diversity.

I have often wondered at the growth of homophobia in the region and the country, when homosexuality is being muted, understood and accepted in the developed world, and, reflect back on the debate on the Equal Opportunities Bill in the Senate. When I spoke in favour of the Bill I did question the exclusion of sexual orientation. The response on the Government side while I spoke was snickering by the front bench, even from that champion of the human rights movement, rather like first formers hearing their first risqué joke. Sexual orientation was simply ignored in the final version passed by that House. And I reflected also on my childhood observations of the ways in which St Mary’s College students used to taunt a Down’s syndrome teenager being walked by a carer in Lord Harris Square – 12-year-olds shouting “chupidee, chupidee”.

There is no doubt, at least in my mind, that any behaviour that in any way differs from what is demanded by convention in society is fair game for discrimination and ostracism, and, even violent suppression and assault. And people use it at all levels. Historically all religions have used it to control followers or to increase numbers.

26 June, 2011

Privacy rights for sexual orientation calmly take a small step forward in T&T

Filed under: government/politics,history,human rights,laws,Opposition — caiso @ 11:54

The President last Wednesday (June 22) assented to the Data Protection Act, a landmark piece of legislation that establishes an ambitious framework “to ensure that protection is afforded to an individual’s right to privacy and the right to maintain sensitive personal information as private and personal.” The legislation: promulgates rules and standards for all persons who handle, store or process personal information belonging to another person, in either the public or private sector; regulates the authority of public entities to collect personal information, its use, protection, accuracy and access; establishes hefty fines and corporate penalties for breaches; and includes whistleblower protections. It also provides for the development of binding industry-tailored codes of practice in the private sector.

Of great significance to gay, lesbian and bisexual communities in Trinidad & Tobago, the new law provides heightened protections for “sensitive personal information”, which is defined to include one’s “sexual orientation or sexual life”. Ensuring citizens’ autonomy in their consensual sexual affairs requires both protecting their sexual lives from unwarranted intrusion and protecting them from discrimination based on their sexuality.

This is the first piece of legislation recognizing sexual orientation and related rights that we are aware has been enacted in the history of Trinidad & Tobago’s Parliament. Originally drafted and introduced in November 2008 by the People’s National Movement (PNM) Government, the bill was reintroduced by the People’s Partnership in January of 2011, and shepherded to passage with bipartisan support.

To follow lawmaking in Trinidad & Tobago, visit the Parliament website: http://www.ttparliament.org

The sexual orientation provision was never hidden from the public, and was reported on in the media both times the bill was debated. It is an important lesson about the ways in which our Parliament should be legislating on sexual orientation: soberly, fairly, and without appeals to politics, division, manufactured hysteria and controversy – or imaginary verses from Leviticus. It also demonstrates how legislators can integrate questions of sexual orientation into a broad approach to rights and protections for everyone, and frame them in relationship to matters of broad public and political consensus, e.g. privacy for one’s sexual life. What is of further significance for legislating on sexual orientation is that the bill was subject to unusually vigorous debate and amendment by the Senate’s Opposition and Independent benches, which left the sexual orientation provisions intact. Minister in the Office of the Prime Minister MP Collin Partap, who piloted the bill, was saluted by the PNM for his flexibility and that of his staff in building consensus on the legislation.

We have previously congratulated the Government for its leadership in moving this legislation forward. Today, on behalf of the nation’s tens of thousands of gay, lesbian and bisexual citizens, the Coalition Advocating for Inclusion of Sexual Orientation pays tribute to all parties in Parliament and our Senators on the Independent bench for their support and vigorous contributions to strengthening of a forward-thinking piece of legislation that strengthens respect for human rights, and for our inclusion in it. We are proud today of our Parliamentarians, and we thank them.

Bill manager Collin Partap was saluted for facilitating bipartisan legislating

This is gspottt’s 100th post!

23 February, 2011

T&T’s most read newspaper: excluding sexual orientation from the Equal Opportunity Act is a “most egregious example of official backwardness”

Filed under: constitution,Equal Opportunity Act,human rights,media — caiso @ 08:17

Where does Govt stand on equality?

Express newspaper editorial: Wednesday 23 February 2011 – page 12.

If Trinidad and Tobago’s law on gay rights is finally being brought into the modern world, it would be deeply disappointing to witness any reactionary kicking and screaming by an administration that otherwise projects itself as cutting-edge in policy promptings.

For failure to admit sexual orientation as a ground of discrimination, T&T has been lagging behind the rest of the progressive world which has long been taking this development in stride. Some clarification is due on where this government stands: whether with the scripture-quoting homophobia identified with big names in reggae culture, or with the enlightened consensus holding that all human beings should be treated equally. The clarification is especially necessary in light of the fact that gay rights appeared to be immediately opposed by a Government Senator-Minister invoking, not only religion, but not even his own religion.

The issue reared its head, albeit not for the first time, in the context of an amendment to the Statutory Authorities Act, debated in the Senate last week, that would allow the next-of-kin of public servants to get one month’s salary benefit. Independent senators Corrine Baptiste-McKnight and James Armstrong made an argument that, in respect of persons cohabiting as spouses, the definition should not be restricted to persons of the opposite sex. It was Subhas Panday, Minister in the National Security Ministry and a supposed Hindu, who challenged Senator Baptiste-McKnight on this issue, asking how she would reconcile such a clause with Section 52 in the Book of Leviticus.

In fact, there is no such section, since Leviticus has only 27 chapters but, in any case, policy arguments in a multi-religious society cannot be based on theology. Desirable goals, empirical validation and ethical reasoning must inform effective policy. Besides, T&T has no law against homosexuality per se, but only an antediluvian statute against sodomy which, for obvious reasons, is unenforceable save in cases of rape. And herein lies the point: should the State interfere in sexual relationships between consenting adults?

Most citizens would say No. Yet many hold the view that, when such consent is between two adults of the same sex, the State has the right to deprive such individuals of rights enjoyed by heterosexual adults. This country’s Equal Opportunities Act, which specifically allows discrimination on the basis of sexual orientation, is the most egregious example of official backwardness on this issue. Such discrimination flies in the face of the nation’s supreme law, since Section 4 (b) of the Constitution guarantees, “the right of the individual to equality before the law and the protection of the law”.

To exclude homosexuals from such protection, even by inaction, makes a mockery of rhetoric about carrying the nation forward.

18 February, 2011

We don’t need debate on gay marriage, Mary King. We need Government action on violence and discrimination.

“No thank you!” CAISO has responded to Government’s proposal the day after Valentine’s Day for a national debate and referendum on same-sex marriage, made by Minister of Planning, Economic & Social Restructuring and Gender Affairs during Senate debate on the Statutory Authorities (Amendment) Bill. That legislation seeks to extend a death benefit available to public servants’ next of kin to the employees of statutory authorities. It goes further, to include in the potential beneficiaries common-law partners of unmarried employees and their children born out of wedlock – but restricts the benefit to only partners “of the opposite sex”. In floor debate, Government Senators defended on “religious” and “cultural” grounds their decision to recognize fornicators, but not sodomites.

Illustrating the circus such a proposed debate would be, Leader of Government Business in the Senate Subhas Panday, a Hindu, interrupted an Independent Senator, Corinne Baptiste-McKnight, as she criticized the bill for “entrenching” this discriminatory provision and bucking where the world was moving, by shouting a reference to an imaginary verse of Leviticus: 52. (Leviticus has only 27 chapters.) CAISO doesn’t trust that this debate proposal won’t simply take Trinidad & Tobago down the same path of national conflict and global embarrassment as Uganda, ironically as we too chair the Commonwealth of Nations. Holding a popular “referendum” (the word the Government used) on whether citizens who are a minority group have equal rights would also make the nation a laughingstock in the international community.

The proposal is a distraction, Government clearly isn’t listening, and has its priorities on GLBT issues wrong. CAISO has consistently given the Government six politically feasible national priorities for action; and same-sex unions or debate on them was never one. We’ve written the Prime Minister, and we met with Minister King early in the new administration to share these six items.

Three of them address responses to areas where social vulnerability is highest for members of the GLBT community, none requiring legislation or referenda:

We also advocated that Min. King build her own Ministry’s capacity to support the Government with planning, policy and programme development related to sexual orientation and gender identity (SOGI), through staffing, and government-to-government technical assistance; and we submitted an FY2011 citizen’s budget proposal for a SOGI desk in the Ministry.

Most important, we asked the Government to take action to protect us from the discrimination and violence we face on a daily basis because of who we are, discrimination that is fuelled when national leaders speak of us on television and radio from the chambers of Parliament, not as citizens who have sex in our bedrooms with other adults and party and form organizations and love each other and voted for them, but as people who are controversial and sensitive and connected to illegality and whose rights and relationships require debate.

The Equal Opportunity Act, a brainchild of the UNC Government, which has just entered its second decade, is an ideal vehicle to enact those discrimination protections. (The Catholic Commission on Social Justice, which opposed the 2004 Gender Policy, agrees that we ought to be so protected.) There is furthermore measurable national consensus in Trinidad & Tobago on protecting people from discrimination in basic walks of life, regardless to their sexuality. The Equal Opportunity Commission the Act established is also an ideal vehicle to take the national look at equality, sexual orientation and discrimination, and needed responses, that Min. King is concerned with – in a sober, deliberate and apolitical fashion. In the functions the Act assigns the Commission, it provides for it to review emerging questions of discrimination, conduct research and make recommendations.

In explaining why the Government had specifically excluded unmarried same-sex partners from the bill, Minister of Public Administration Sen. Rudrawatee Nan Gosine-Ramgoolam admitted she was not a legal expert but went ahead to conclude same-sex relations were illegal. As a result, she argued (before correcting herself), Government “can’t put the horse before the cart”. This seems sadly true. Protecting GLBT citizens from discrimination and violence is the political horse our Government should be riding, not flogging gay marriage.

Finally, CAISO has repeatedly asked the Government to exercise leadership and speak out boldly against discrimination based on sexual orientation and gender expression, and we congratulated the Prime Minister because she did so at the Sanatan Dharma Maha Sabha just days after the election. She has also done so on HIV. We have also acknowledged the Government for its bipartisan work on strengthening the right to privacy.

Furthermore, we have persistently asked Government to listen and to consult, and offered our help and partnership with building a nation for everyone. But our Ministry of Foreign Affairs told CAISO the reason they abstained on two UN votes late last year was because Government does not have a position on whether gay people have a right to life. Young people are still being beaten by their families and bullied in school. Crime victims of anti-gay violence are taunted as bullers by police officers. A dozen 20-something-year-olds, many of whom have nowhere to go because of who they are and who are unsafe in the shelter, were recently charged for loitering. And our humanity is seen by the Government as in need of debate.

CAISO:

We salute Independent Senators James Armstrong, Corinne Baptiste-McKnight, and notably Helen Drayton who hammered away at the Government. They all assailed the restrictive common-law provision in the bill as antiquated and inconsistent with state obligations of equal treatment. And PNM Senators Pennelope Beckles-Robinson and Terrence Deyalsingh showed welcome compassion on the issue. Sen. Beckles-Robinson, the Opposition Leader in the Senate, proposed to Government a modest amendment, which Sen. Panday rejected, that would have avoided enshrining in law new discriminatory language and simply have the bill reference the Cohabitational Relationships Act. What these Senators displayed was that many good people in Trinidad & Tobago of different political persuasions are more than ready to end the ways in which our laws and public policy discriminate unnecessarily against gay and lesbian people. They also displayed that those who do so are in the highest office, and that they are unafraid to speak out publicly. We also saw the sad display of how politicians who defend intolerance on religious grounds often can’t even cite the scriptures they are hiding their personal prejudice behind.

16 February, 2011 

Sen. Hon. Mary King
Minister of Planning, Economic & Social Restructuring & Gender Affairs
Level 14, Eric Williams Financial Complex
Independence Square, Port of Spain

Dear Minister King:

I am writing, in the wake of yesterday’s Senate debate on the Statutory Authorities (Amendment) bill, to ask you to meet again with me and other representatives of our Coalition at the earliest opportunity. We would like to discuss:

  • Government Senators’ conduct and remarks during the debate, including your own, and the damage we believe they risk doing to the cause of equality
  • the status of the community listening forum proposed in our July 8, 2010 meeting and discussions with you, MP Ramdial and other Government officials;
  • an alternative or complementary approach to the political referendum you proposed yesterday for achieving national engagement with human rights questions of sexual orientation, gender identity and discrimination, involving the Equal Opportunity Commission

7 February, 2011

Another step in the region towards bodily freedom, in Belize

Why do modern independent Caribbean states, where people have fought for centuries to free our bodies from enslavement, indentureship, control by our husbands, exploitation of our labour, colonial subjection, sexual harassment and prohibtions on dancing still defend laws that say that adults cannot use our bodies in mutually consenting ways with each other sexually in private? Why are only certain forms of sex between consenting adults against the law? Why aren’t other forms of sex, which are just as “unusual”? Or others that are unlikely to produce children, simply pleasure? Why are eating pork and beef and wearing headcoverings and extramarital sex not the subject of our secular laws, but homosexuality is?

Why would anyone committed to liberty deny someone of maturity control over her or his body and sexuality?

Although in many jurisdictions our laws against private sex are only occasionally enforced, they remain on the books and serve to legitimate violence, discrimination and stigma against gay men and lesbians whom they render “unapprehended felons”, as a South African jurist quoted in a judgment overturning that country’s sodomy laws. And their enforcement is technically just one election, or even one enterprising police officer, away.

The first constitutional challenge to the region’s colonially derived laws against sexual activity between consenting adults has been filed, in Belize, targeting a law against “carnal intercourse against the order of nature”, which in common law means anal sex.

Many of our regional Independence constitutions, through “savings clauses”, hold immune from constitutional challenge any of these archaic laws (like others which PNM MP Colm Imbert mocked recently in Parliament that address wounding pigeons, bathing in the Maraval River and hanging clothes out to dry in the front of a shop) that were  put in force in colonial times; these savings clauses in effect say the colonizers knew best. Belize’s constitution limited that period of immunity to five years. Trinidad & Tobago preserved our savings clause through our 1976 Republican constitution, and in a number of more recent proposals for constitutional “reform”.

We wish our Belizean GLBT counterparts, the community organizers there, and their visionary legal advocates the best success with this landmark lawsuit; and we hope their bravery and jurisprudence will benefit the region as a whole.

Statutory penalties in the Caribbean for consensual sexual activity between two adult human beings; and the most recent date of the law’s enactment
Antigua & Barbuda 1995 15 years sexual intercourse per anum by a male person with a male person or by a male person with a female person
5 years an act, other than sexual intercourse (whether natural or unnatural), by a person involving the use of the genital organ for the purpose of arousing or gratifying sexual desire (unless committed in private between a husband and his wife; or a male person and a female person)
Bahamas 1991 20 years any adult male who has sexual intercourse, in a public place
20 years any female adult who has sexual intercourse, in a public place
Barbados 2002 life buggery
10 years an act, whether natural or unnatural by a person involving the use of the genital organs for the purpose of arousing or gratifying sexual desire, on or towards another or inciting another to commit that act with the person or with another person
Belize 2000 10 years carnal intercourse against the order of nature with any person
Dominica 1998 10 years; psychiatric hospitalization for treatment at the discretion of the Court sexual intercourse per anum by a male person with a male person or by a male person with a female person
4 years; psychiatric hospitalization for treatment at the discretion of the Court attempt to commit sexual intercourse per anum by a male person with a male person or by a male person with a female person
5 years an act other than sexual intercourse (whether natural or unnatural) by a person involving the use of genital organs for the purpose of arousing or gratifying sexual desire (unless committed in private between an adult male person and an adult female person)
Grenada 1958 10 years unnatural connexion
Guyana 1893 life buggery with a human being
10 years attempts to commit buggery
2 years any male person, who in public or private, commits, or is a party to the commission, or procures or attempts to procure the commission, by any male person, of an act of gross indecency with any other male person
Jamaica 1864 up to 10 years hard labour the abominable crime of buggery with mankind
up to 7 years, with or without hard labour attempt to commit the said abominable crime
up to 2 years, with or without hard labour any male person who, in public or private, commits, or is a party to the commission of, or procures or attempts to procure the commission by any male person of, any act of gross indecency with another male person
St. Kitts-Nevis 1990 up to 10 years, with or without hard labour the abominable crime of buggery
up to 4 years, with or without hard labour attempt to commit the said abominable crime
St. Lucia 2005 5 years; psychiatric hospitalization for treatment at the discretion of the Court attempt to commit sexual intercourse per anus by a male person with a male or by a male person with a female person
10 years (5 years on summary conviction) an act other than sexual intercourse (whether natural or unnatural) by a person involving the use of the genital organs for the purpose of arousing or gratifying sexual desire (unless committed in private between an adult male person and an adult female person)
St. Vincent & the Grenadines 1990 10 years commit buggery with any other person; permit any person to commit buggery with him or her
5 years commit an act of gross indecency, in public or private, with another person of the same sex, or procure or attempt to procure another person of the same sex to commit an act of gross indecency with him or her
Trinidad & Tobago 1986 25 years sexual intercourse per anum by a male person with a male person or by a male person with a female person
5 years an act, other than sexual intercourse (whether natural or unnatural), by a person involving the use of the genital organ for the purpose of arousing or gratifying sexual desire (unless in private between a husband and his wife; or a male person and a female person)
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