The imposition of “buggery” and “gross indecency” laws in the Anglophone Caribbean by British colonizers in the 1800s was an attempt to strip queer people of their humanity. The recent wave of court rulings decriminalizing same-sex intimacy is a welcome sign of official recognition of that humanity.
Under European colonialism, buggery and gross indecency laws were used to reinforce sex and gender norms that centered on heterosexual relationships and the nuclear family. Traditional Caribbean homoerotic relationships such as mati-work, sibi, and zami were demonized, alongside Caribbean matrilineal family structures, as “deviant from the European norm,” as Caribbean feminist scholar Dr. Rhoda Reddock has pointed out. In some countries, including Guyana, British colonizers also explicitly criminalized vagrancy and gender non-conformity as part of a battery of laws passed when slavery ended in order to maintain control of free populations of black and indentured workers. These laws institutionalized persecution of the urban poor, especially anyone whose behavior could be characterized as deviant. As law lecturer Tracy Robinson has noted, “Laws do not apply evenly to everyone: those with the least resources and those marginalized are at greatest risk.”
In 2018, then-British Prime Minister Theresa May apologized to former British colonies for the legacy of discriminatory laws that criminalize lesbian, gay, bisexual and transgender (LGBTQ) people. But Caribbean politicians expressed reluctance to take the issue of decriminalization to Parliament, some even suggesting that it be put to a public referendum. Decriminalizing same-sex sex became a hot-button political issue, framed as a moral and religious question and not one of human rights. In that political context, LGBTQ activists in the Caribbean decided that strategic litigation via the Court system offered a better opportunity for a successful result. Academics and legal scholars lent their support to the charge to reverse these damaging and outdated laws through Constitutional challenges at national Supreme Courts.
This proved to be a winning strategy. In 2022 alone, three Caribbean countries struck down anti-LGBTQ buggery and gross indecency laws.
The Jamal Jeffers decision from St. Kitts and Nevis emphasized the court’s role in protecting the rights of minorities and marginalized people who are unable to protect their rights through the democratic process. In Trinidad and Tobago, the Jason Jones ruling highlighted what local politicians seemed reluctant to recognize, stating that “It is patently obvious that democratic societies are moving away from the criminalization of homosexuality.”
And in Antigua and Barbuda, the Orden David decision held the State accountable to its human rights obligations to prohibit discrimination on the basis of sex (understood to include sexual orientation), obligations originating in ratified international treaties like CEDAW and the International Covenant on Economic, Social and Cultural Rights among others.
The judgment reflected on states’ responsibilities to protect and uphold queer dignity:
“The journey to self-discovery is very personal and the outcome is the essence of what it means to be human. To deprive a person of opportunities while on their life’s journey of gender discovery is likely to negatively impact their sense of self and, consequently, their identity. Subject to expressed constitutional restrictions, the spirit of the Constitution protects against persons having to be ‘less of themselves’ or to suffer the indignity of the loss of personal authenticity.”
To date, laws that criminalize consensual sexual intimacy between adults of the same sex have been struck down by courts across the anglophone Caribbean, including:
The Belize Supreme Court in Orozco v the Attorney General of Belize Claim No. 688 of 2010, on the grounds of human dignity, privacy, sex discrimination, and freedom of expression, as protected by Sections 3(c), 6, 12 and 14 of the Constitution of Belize 1981. The decision was given in August 2016.
Trinidad and Tobago
he Trinidad and Tobago High Court in Jason Jones v the Attorney General of Trinidad and Tobago, CV 2017-00720 on the grounds of dignity, liberty, privacy and the right to family life and freedom of expression, as protected by Sections 4(a), 4(c) and 4(i) of the Constitution of Trinidad and Tobago. The decision was given in April 2018.
Antigua and Barbuda
The Eastern Caribbean Supreme Court in Orden David and Women Against Rape Inc. v The Attorney General of Antigua and Barbuda ANUHCV2021/0043 on the grounds of liberty, protection of the law, freedom of expression, protection of personal privacy, and protection from discrimination on the basis of sex, as protected by sections 3, 12 and 14 of the Constitution of Antigua and Barbuda. The decision was given in July 2022.
Saint Kitts and Nevis
The Eastern Caribbean Supreme Court in Jamal Jeffers and St. Kitts and Nevis Alliance For Equality Inc. v the Attorney General of St. Christopher and Nevis, SKBHCV 2021/0013 on the grounds of privacy and freedom of expression, protected by sections 3 and 12 of the Constitution of the Federation of Saint Christopher and Nevis. The decision was given in August 2022.
The Barbados High Court in via oral decision in December 2022. The written decision was not available before the publication of this article. decision was given in August 2022.
A case is currently pending in St. Lucia. Five other Caribbean countries–Guyana, Grenada, Dominica, Jamaica, and St. Vincent and the Grenadines, all former British colonies–retain buggery and gross indecency laws.
Transgender people in the Caribbean also celebrated the 2018 outcome of McEwan and Others v the Attorney General of Guyana, CCJ Appeal No. GYC2017/015, which originated in Guyana and was heard on appeal by the Caribbean Court of Justice. Seven transgender women were arrested under the Summary Jurisdiction (Offences Act) on charges of “vagrancy” and “for being a man…in a public place… appearing in female attire.” The first magistrate to hear the case told the women that they were confused about their sexuality and should go to church. Ultimately, the Caribbean Court of Justice ruled in favor of the women. The ruling found that:
“Difference is as natural as breathing… No one should have his or her dignity trampled upon, or human rights denied, merely on account of a difference, especially one that poses no threat to public safety or public order.”
Litigation is not the only means of reform, and activists have been creative in advancing laws that are politically palatable and inclusive of LGBTQ and intersex people. In March 2022, St. Lucia passed the Domestic Violence Act. It is the most progressive domestic violence law in the region, with the inclusion of gender-neutral language and non-discrimination provisions which allow people to access protection orders and other support services previously withheld on the basis of sexual orientation or gender identity.
Whether via the courts or the Parliament, individual activists, local organizations, and regional coalitions are playing an enormous role in driving legal reform. In many of the court matters, individual activists stepped forward as litigants in the context of public pushback and hateful rhetoric from conservative church groups. Most recently, the Eastern Caribbean Alliance for Diversity and Equality Inc. (ECADE) spearheaded the wave of decriminalization in the Eastern Caribbean in 2022, but many organizations have made this progress possible. Grassroots organizations appeared as litigants, led street protests and gave of themselves in countless ways over the past decades to protect the dignity of LGBTQ people in the Caribbean.
The struggle for dignity, authenticity, and the right to enjoy “the essence of what it is to be human” continues in the Caribbean, as LGBTQ activists fight for equality and full inclusion in society beyond decriminalization. The recent court rulings provide them with powerful ammunition as they stake those claims.