For not the first time in less than three years, questions are being raised about the validity of Jamaica’s anti-buggery laws. Under the Offences Against The Person Act, it is unlawful for citizens to engage in the act of buggery (anal sex). However, for the first time, the 147 year old law faces two serious challenges; one legal and the other of a socio-economic nature.
A group of Jamaicans including Jamaicans for Justice, Jamaican Forum for Lesbians All Sexuals and Gays (J-FLAG), AIDS-Free World, Families Against State Terrorism (FAST), with the assistance of famed attorney Lord Anthony Gifford; have decided to challenge the law before The Inter-American Commission on Human Rights (IACHR). The second challenge came recently at the Commonwealth Heads of Government conference in Australia. The British Prime Minister, David Cameron, has indicated that his country is no longer willing to budget aid for countries that continue to legislate against homosexuals. Jamaica is one such member of the commonwealth.
According to the case being mounted by Lord Gifford, the law fuels discrimination against gays and forces them under ground and away from necessary help, therefore furthering the spread of HIV/AIDS in the country. According to the group, the law creates a destructive cloud over the lives of homosexual Jamaicans and encourages homophobic sentiments in a country where the minority group is often “harassed, beaten, vilified and even killed” because of their sexual orientation. The group further argues that the law encourages vigilante justice by individual citizens who believe the statute gives them permission to perpetuate violence against sexual minorities. Convenor of F.A.S.T, Yvonne McCalla Sobers went a step further. She argued that the state had no need to retain the law, considering it cannot be enforced and would require the state to breach the privacy of an individual’s home. In short, the group believes the law is in clear violation of internationally recognised standards of human rights. It is also note worthy that Lord Anthony Gifford has successfully challenged a similar law in Ireland before the European Court on Human Rights.
While I have found merit in the arguments raised by group, I am deeply troubled by the approach being taken. This is not the way to get due observance for the rights of homosexuals in Jamaica. Legislation alone cannot work. One must first understand the nature of the opposition to homosexuality in this country before one seeks to remedy the situation. The opposition is a matter of morality and conscience. Now whether you accept the moral argument or not is besides the point; the fact is, that is the smoke screen argument mounted by our “conservative” society. It is irresponsible social policy to force change on the populace through legislation and court rulings. In fact, should the Commission overturn the law, I feel it will only incite further hatred and perhaps sustained violence against homosexuals. It is perhaps prudent that I point out that Jamaica is under no practical obligation to accept the ruling of the Commission. However, it would be damning if the Government ignored such a ruling, since it would mean the Government does not respect it’s international agreements.
The Deputy Foreign Minister, Sen. Marlene Malahoo Forte, has the right idea when she stated that legislation alone cannot fix the problem. This is true. You see, governments cannot legislate people’s conscience. I repeat, this is an issue of conscience. A generation of people have been socialised to believe that homosexuality is abhorrent and a moral wrong, passing a law in Gordon House cannot change that. We first need to engage the population in a real and meaningful way as it relates to respect for the rights of all citizens. The ignorant among us must be sensitized about the dangers of bigotry and prejudice. The Government should not be seen to be forcing tolerance and acceptance on people. This is the wrong approach. We can look north to the U.S., where the Supreme Court has been in the habit of “legislating” social change. The Civil Rights Era being the perfect example. There was sustained violence against blacks, as white racists took revenge for integration being forced on them. The principle here is the same. Integration is being forced on Jamaica.
What’s more, considering Jamaica’s insulated attitude, how will it be perceived if international Heads of Government and organisations force this issue on our people? It can only serve to incite an even larger back lash against homosexuals. I’ve overheard conversations to the tune that Jamaica should reject the aid rather than compromise it’s “morals”. What would be the approach of the church? I forsee even strong condemnation of homosexuality from that institution, particularly protestant extremists. There will be serious political and social repercussions if this group prevails in the quest to over turn the law. The government will be placed between a rock and a hard place. Do they reject Britian’s funding? Or do they accept the funding and repeal the law, in direct contravention of the wishes of the population? I reject the forceful and bullish approach being adopted by the UK’s Prime Minister, they should never act as if the change to accepting a homosexual way of life came overnight in Britain, it is hypocritical. These things take time, incremental steps; that’s how we should approach it.
Make no mistake, I believe the law should be repealed. I agree with Mrs. McCalla Sobers, the law is pointless and in my opinion only serves as a tool to maintain fear and subject homosexuals. It serves as psychological deterrence and I believe that is one of the main reasons it is retained. The state is grossly out of line if it proposes to extend itself into the bedroom of consenting adults, with an aim of determining how they have sex. That kind of abuse of state power must be condemned and rejected. This is a matter of justice and equality, and both political parties must begin to discuss the issue in an honest and open manner. Still, I feel the repealing should be the final step, after extensive work is done in ensuring that our people are educated and prepared for the drastic change in social policy that we would be undertaking. Let us wait to see the outcome of the legal challenge.
“Injustice anywhere is a threat to justice everywhere.” – Dr. Martin Luther King Jr.