Decriminalizing Homosexuality: The cases of Canada and Jamaica

By Maurice Tomlinson, Senior Policy Analyst, Canadian HIV/AIDS Legal Network

March 4, 2016

Maurice Tomlinson, Stand for Equality, Jamaica

Canadian Prime Minister Justin Trudeau recently indicated that he will posthumously pardon George Klippert for engaging in consensual sodomy. Klippert’s 1965 conviction under the British imposed anti-gay law and his subsequent sentence as a sex offender led to a public outcry that caused Justin’s father, Pierre Trudeau, to introduce legislation to decriminalize sodomy. The bill to scrap the colonial statute became law in 1969.

Five decades after Klippert’s conviction, I could now face a similar fate in my homeland of Jamaica. Another former British colony, Jamaica also inherited the Victorian-era decree that criminalized all forms of intimacy between men. However, in 2011, Jamaica made the law worse and introduced a new Sexual Offences Act that mandates anyone convicted of gay acts to be registered as a sex offender and always carry a pass or face 12 months’ imprisonment and a JA$1 million fine. As a gay Jamaican married to a man under Canadian law and with residences in both countries, I am liable for prosecution each time my husband and I hold hands in the privacy of our bedroom in Jamaica.

I have therefore launched a constitutional claim against the archaic 1864 British colonial anti-sodomy law on the ground that it violates my rights under the 2011 Charter of Fundamentals Rights and Freedoms. I am also challenging the sex offender registry requirements for consenting adult gay men.  My case will be difficult because there was an attempt by our legislators to “save” the statute from judicial review: as long as the anti-sodomy law remained unchanged it could not be challenged in court. However, I will argue that adding the new sex offender registration requirement has opened the statute for constitutional review.

(It is important to note that a Canadian legal academic was instrumental in ensuring that Jamaica’s Charter does not fully protect LGBTI citizens. On a visit to our Parliament, she advocated strongly for Jamaica NOT to adopt the Canadian Charter wholesale as a model because it could lead to such “horrors” as human rights for gays.)

In a talk recently delivered in Toronto, Tracy Robinson, a Jamaican attorney and former Rapporteur on the Rights of LGBTI Persons at the Inter-American Commission on Human Rights, emphasized that most Caribbean people love the British-imposed anti-sodomy laws too much to support their repeal. Whether out of sheer inertia, or more likely, a deadly fear of the powerful homophobic religious groups, our legislators have very little appetite for jettisoning these discriminatory decrees.

This is unlike the Canadian situation in the sixties when church groups had far less control over popular culture. The public outcry at the sheer injustice of criminalizing the private lives of consenting adults was indicative of the “free love” movement of that era. Ironically, one would think that post-slavery societies such as the Caribbean shared a similar or more strident view of personal autonomy. But, sadly, that has been perverted by a largely disingenuous campaign by global north–backed Christian groups who insist on painting LGBTI people as threats to a “healthy society.” As a result, a 2014 poll found that nearly 91% of Jamaicans were in support of the anti-sodomy law.

However, I would still encourage Prime Minister Trudeau on his inevitable visit to Jamaica to share the positives that Canada reaped from repealing the ban on gay love. Prime Minister Trudeau is in a very good place to make this pitch: not only is his family name highly regarded (the Trudeaus often vacationed on the island and the elder Trudeau was a staunch supporter of Jamaica), but also Canada and Jamaica share many useful points of historical, social and economic contact, both as former colonies and as current members of the Commonwealth of Nations. Therefore, Canada can usefully demonstrate to Jamaica how to build a more harmonious and inclusive society with direct economic and health benefits for all persons through the recognition of LGBTI human rights. Jamaica would do well to follow the Canadian model of 50 years ago by ending the persecution of gays and allow us to fully participate in society.

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