Of no concern to the court

ANDRE BAGOO

ON THE provisions of the Equal Opportunity Act 2000 which authorise teachers, lecturers, employers, contractors, businessmen, store attendants, landlords, taxi drivers and more to discriminate against gay people wilfully, the Court of Appeal had something to say a few weeks ago.

“The astuteness of that policy is a matter for the wider community and the court of public opinion,” said Justice of Appeal Nolan Bereaux. “It is no concern of this court.”

The case involved was a simple one. Before the justices were facts which suggested an openly gay man was hounded out of his job. The man alleged his female boss on several occasions inappropriately touched him while calling him “sexy,” “hot” and “bae.” After complaining to upper management, he was fired. He filed a complaint under anti-discrimination law.

All the players involved in this matter had to grapple with the anomaly of an anti-discrimination law that asks claimants to erase their sexual orientation when filing a complaint. The act stipulates gay people are not protected by its provisions.

In April, as it ruled on this case of a gay man being victimised, the Court of Appeal insisted, among other things, that sexuality was not at the heart of the man’s grievance. It was rather the “treatment” to which he was subject that grounded the case, as per British case-law precedent. Sexual orientation was tangential, a merely inconvenient detail.

It is hard to imagine a set of facts in which sexuality might not have been more relevant.

Imagine a fictional scenario: A straight boss at work discovers you’re gay. They decide to force you out. They engage in a campaign of harassment to do so. They deliberately make passes at you in front of your co-workers repeatedly, knowing full well you will never reciprocate. Such a course of action is not only grossly inappropriate, but it also places your sexuality centre stage in a work environment in a demeaning way. You complain. No action is taken. You quit. Mission accomplished, from the perspective of the boss who wished you gone.

The Court of Appeal would, based on the posture taken in its recent ruling, seem to believe that it is okay for such discriminatory behaviour to occur. Judges should turn a blind eye because Parliament has, in its wisdom, decided not to protect gay people.

But when it comes to the rights of those identified as a “minority,” it cannot be that their fate lies exclusively in the hands of the majority. That is the abhorrent outcome of leaving human-rights matters solely for the determination of a parliament, which by its nature is an organ of majority rule. Such is the ungodly implication of a seemingly innocuous policy of narrow legal interpretation.

Around the world, the argument that judges should only parse statutes literally or else should avoid purposive interpretation is an old one. What is overlooked by those who advance it, however, is the fact that the idea of rigidly sticking to a literal interpretation of legislation is, on its own, a value.

Doggedly sticking to proceduralism, even when faced with abhorrent acts of parliament that flagrantly breach fundamental rights, means venerating the value of literal interpretation over the human being.

In April, the Court of Appeal adopted a purposive approach to interpretation in stating “treatment” was wide enough to include sexual harassment (the phrase had been used by the claimant). With one hand the court dealt with substance, with the other it hid behind words.

Meanwhile, the judges took care in protecting the identity of the woman who allegedly touched the gay man inappropriately.

But they had no qualms in relaying to the world that “serious questions as to the credibility” of the claimant had been raised. The court said it “took no view” on these unspecified questions, but it seemingly failed to appreciate that it had invited the public to doubt the integrity of someone coming forward claiming victimisation, someone who happened to be gay.

Also telling is the fact that the word “gay” appears nowhere in the court’s 33-page ruling. Nor does “homosexual.” In the year 2022, the highest court in these islands seems to know only the very derogatory term “non-heterosexual.” This potentially betrays, in my view, an impulse to erase the sexuality of the claimant to a degree well beyond the parameters of legal argument.

I believe that in ruling the gayness of the litigant irrelevant, the judges not only venerated a jurisprudential principle of strict interpretation over and above the rights of the individual before them. They, perhaps unwittingly, put him back in the closet. They breathed new life into old tropes that have been imposed on gay people in this country. They reflected views they might on some level empathise with, namely: “I’m okay with you being gay if you don’t shove it in my face,” “Don’t be gay around me,” and “Don’t ask, don’t tell.”

If this reading of the ruling strikes you as overly dramatic, consider the fact that the court had nothing to say about the plight faced by queer people in this country or the inappropriateness of Parliament’s action in excluding gays from anti-discrimination protections in the first place. It wilfully turned a blind eye to the flood of jurisprudence and judicial commentary since 2000 in this country, in the Caribbean, in the Commonwealth, and in the world that has confronted the realities faced by LGBTQ+ people.

The purpose of the Equal Opportunity Act was to acknowledge the idea that all human beings are equal and should have an equal chance of making a way in the world. If Parliament erred through the addition of provisions which contradicted this principle, it was open to the court to strike down the offensive portions of the law.

Ultimately, the court’s silence speaks loudly to one fact. The learned judges squandered their own opportunity to do what was right and just: to remedy Parliament’s miscarriage of ethics and to give gay people not only an equal opportunity but a fighting chance.

Andre Bagoo is a writer and poet.