A victory was scored yesterday for the LGBTQI community, which is now celebrating a landmark Supreme Court ruling which has overturned this country’s sodomy law, deeming it unconstitutional.
Justice Devindra Rampersad had been asked by Jason Jones – a Trinidad-born openly gay man – to determine whether the State had the constitutional authority to criminalise sexual relations between consenting adults of the same sex.
He ruled that Jones’ dignity and basic human rights were taken away by a state-sanctioned threat of prosecution and persecution because he was homosexual.
In his 58-page written decision, Rampersad said Jones has been treated differently to heterosexuals because of his sexual orientation and the manner in which he expresses his love and affection.
The judge also disagreed with the State’s argument that Jones’ case was not about homosexuality, adding that the retention of the law had “everything to do with homosexuality and the colonial abhorrence to the practice.”
He added that the law “obviously remains” as a statement by the State against homosexuality “since there seems to be no other purpose.”
He said because of the manner in which Jones chose to express his love and affection, he had been treated differently from heterosexuals because of his sexual orientation.
“It is a threat that is sanctioned by the State and that sanction is an important sanction because it justifies in the mind of others in society who are differently minded that the very lifestyle, life and existence of a person who chooses to live, in the way that the claimant does, is criminal and is deemed of a lesser value than anyone else.
“Those criminal sanctions have the potential to be used oppressively by differently minded citizens as a foundation for hate as condoned by the State.”
In 2017, Jones challenged sections 13 and 16 of the Sexual Offences Act which criminalised “sexual intercourse per anum” (anal sex) between consulting male adults. He complained that his basic common-law rights to privacy and family life were being infringed, as the law treated him differently because of sexual orientation, and imposed criminal sanctions on him.
Rampersad said the offending sections were not “reasonably justifiable in a society that has a proper respect for the rights and freedoms of the individual.
“This is not a case about religious and moral beliefs but is one about the inalienable rights of a citizen under the Republican Constitution of Trinidad and Tobago; any citizen, all citizens.
“This is a case about the dignity of the person and not about the will of the majority or any religious debate.
“To this court, human dignity is a basic and inalienable right recognised worldwide in all democratic societies.”
He said by the three-fifths enacted law, Parliament took “the deliberate decision” to criminalise homosexuality and threatened homosexuals with prosecution and persecution, leaving them unable to lawfully live their life, choose their life partners or create the families that they wished for.
“To do so would be to incur the possibility of being branded a criminal.
“That is the threat that exists at present.”
Rampersad also said keeping the unenforced laws on the statutes made no logical sense and, instead, “seems more vindictive than protective or curative in any manner.
‘As if to hold a “big stick” over a minority to try to enforce a portion of society’s morality over it.”
Rampersad said there was no reason why non-consensual sexual intercourse per anum cannot be caught under rape.
“The definition of rape is therefore broad enough to cover nonconsensual sexual intercourse per anum. The conscious effort and deliberate action to extract this non-consensual activity from that offence of rape is an obvious preservation of the societal abhorrences towards homosexuality.”
Although he has deemed sections 13 and 16 unconstitutional and of no effect to the extent that they criminalise any act constituting consensual sexual conduct between adults, he did not immediately strike the offending sections off the law books.
The judge has invited written submissions on the issue of striking down the sections which will be ventilated in court on July 4.
The State, represented by Senior Counsel Fyard Hosein, said it was leaving the issue up to the court to pronounce on, but needed time to consider and research the ripple effects the ruling may have on other legislation and legal principles, particularly as it relates to Parliament being the supreme lawmaker and the savings-clause feature of the Constitution, which precludes a court from striking down and reviewing legislation which was in existence when the Constitution was drafted and which has been marginally changed since.
Rampersad, however, posited that the savings clause created problems, and was untenable under the Constitution, as it continued to imprison this country under colonialism.
He was also compelled to state that it was unfortunate when society valued a person or gave a person their identity based on their race, colour, gender, age or sexual orientation.
“That is not their identity. That is not their soul. That is not the sum total of their value to society or their value to themselves. The experiences of apartheid South African and the USA during and after slavery, even into the mid- and late 20th century, have shown the depths that human dignity has been plunged as a result of presupposed and predetermined prejudices based on factors that do not accept or recognise humanity.
“Racial segregation, apartheid, the Holocaust – these are all painful memories of this type of prejudice.”
He said to now deny a perceived minority their right to humanity and human dignity would be to continue that type of thinking – this type of perceived superiority based on the genuinely held beliefs of some.
“This conclusion is not an assessment or denial of the religious beliefs of anyone. This court is not qualified to do so. However, this conclusion is a recognition that the beliefs of some, by definition, is not the belief of all and, in the Republic of TT, all are protected and entitled to be protected, under the Constitution.”
In its counter-arguments on the justification for the law, the State advanced that it was to maintain traditional family and values that represent society while admitting that the law had never been enforced with respect to consenting males.
The Equal Opportunities Commission adopted Jones’s arguments, while the Sanatan Dharma Maha Sabha referenced religious Hindu texts against homosexuality, and the TT Council of Evangelical Churches (TTCEC) unsuccessfully sought to raise an alleged link between homosexuality and the spread of HIV/Aids.
Rampersad said there was uncontroverted evidence of the discrimination, abuse and threats suffered by Jones as an openly homosexual male in TT.
Jones, in his evidence, said he was forced to flee to London with his homosexual partner in 1996 to escape harassment and discrimination. He said he and his partner realised they could not safely continue their relationship or build a family. He returned to TT in 2010 with the intention of staying permanently but again had to leave two years later because of the homophobia he experienced here.
Jones also complained of generally living in fear of citizens, but also the police.
Speaking immediately after the court’s ruling, Jones said it was a victory not only for himself and the LGBTQI community but also all citizens.
“It is a victory for human rights in a country where every creed and race finds an equal place.”
As he spoke to the media, Jones was shouted down by a man who called him a “buller.”
He said that type of verbal attack and abuse was not going to go away, but it did not bother him.
“Our community can say we are no longer criminals.”
He also said he felt any backlash because of the court’s ruling would be against those who choose to attack the community.
“This is now the rule of law.”
Colin Robinson, of the group Caiso (the Coalition Advocating for Inclusion of Sexual Orientation), said he did not think they would win and the ruling had restored his faith in the courts.
“I had not been able to imagine that I am an equal...That I had equal rights.”
Some members of the Council of Evangelical Churches said this was not the end of their own fight to preserve family life in TT, and spoke of appealing the court’s ruling, while other Christian leaders, who were present in the packed courtroom, chose not to comment.
Outside the Hall of Justice, scores of supporters of the LGBTIQ community hugged each other gleefully and even sang a refrain of the national anthem, while those who are against the repeal of the law continued to speak out against homosexuality.
Jason Jones: British Queen’s Counsel Richard Drabble, and local attorneys Rishi Dass and Antonio Emmanuel.
The Attorney General: Fyard Hosein, SC, Keisha Prosper and Lesley Almarales.
The EOC: Lorelei Wong
SDMS: Dinesh Rambally and Kiel Tacklalsingh.
Council of Evangelical Churches: Elton Prescott, SC, and Alicia George.