Although Sections 13 and 16 of the Sexual Offences Act have not yet been struck off the law books, the ruling on April 12 by Justice Devindra Rampersad makes it as though those sections do not exist.
Dean of the Faculty of Law at the University of the West Indies, Professor Rose-Marie Belle Antoine said the High Court ruled that the buggery laws were unconstitutional, null and void as they were obviously targeting homosexuals. “The law cannot operate any more. Since the judgement, the Police can not arrest anyone for those actions. But the judge said, ‘Let us decide how we are going to fix it.’ Either we get rid of the sections entirely or we could change the wording to say perhaps, only non-consensual anal sex would be illegal. But it is not true to say that the law still stands.”
However, she added that there was already a sexual offence for rape so it was not necessary for another offence to specify anal sex.
Antoine said although the law came from Britain, the UK moved on and made anal sex lawful while we did not.
She said that in TT, changes were made to the law in 1986. Initially the same sections also included oral sex and bestiality (which is now covered elsewhere). This, she said, was the technicality that allowed the law to be subject to review and measured against the constitution.
“We have something called a Savings Law Clause. If the law existed as it was at Independence, it remains on the statute books even if it’s unconstitutional. But if the law is altered, if Parliament changes the law, then it’s no longer saved or preserved. And that was the reason why it was challenged.
“At the time, and for all these years, they remained with the prejudice against homosexuals. They wanted to violate people’s rights.” To make her point she recalled that a clause was added to the Equal Opportunity Act that protected everyone except homosexuals.
Asked what she thought about the State’s intention to appeal the matter, she said if the State won the appeal the law would stay but it was “highly unlikely” that would be the outcome. “I have read the case and I don’t think they have a leg to stand on... The only way the appeal could stand is to justify discriminating against persons because of their sexual orientation.”
Coalition Advocating for Inclusion of Sexual Orientation (CAISO) head Colin Robinson said it was reasonable public policy to want a settled law by seeking a final judgement. However he believed the statements by Attorney General Faris Al-Rawi indicated that the appeal was politically motivated.
“In rushing to assert that the Government, by appealing Justice Rampersad’s judgement, is prevented from taking action on any matter of law whatsoever that affects LGBTI issues, he has overstepped reasonableness and is trying to protect his party from having to take any leadership on LGBTI issues for the next three years of appeals, past the next election. That’s putting politics ahead of his responsibility as the guarantor of everyone’s human rights.” Robinson also criticised Government for doing nothing to comfort the young people being threatened with bodily harm in person and on social media, with eviction, and with job loss for standing up for their rights.