Gays: a Prohibited Class in CARICOM?
In the western hemisphere, only 11 Caribbean states still criminalize private consensual adult same-gender intimacy. Among these countries, Belize and Trinidad and Tobago also ban the entry of homosexuals.
In a pending case before the Caribbean Court of Justice (CCJ), in which I am the applicant, AIDS-Free World (AFW) initially asked the Jamaican government to intervene on my behalf. I am required to work across the region, and was thus affected by the travel ban. Jamaica refused and special leave was sought to bring a private action before the CCJ, the region’s highest court. The claim was for violations of the rights to freedom of movement and national treatment found in the Revised Treaty of Chaguaramas (RTC), which established the Caribbean Community (CARICOM). On May 8, 2014 the CCJ granted leave and the matter is now set for trial.
The Immigration Act of Trinidad and Tobago was last revised in 1995. Section 8 of the statute lists groups of persons who are deemed “prohibited classes.” Included in this list are many individuals who UNAIDS has identified as being vulnerable to HIV and AIDS, including the disabled, homosexuals, and sex workers. The universal standard for designing and implementing anti-HIV interventions is the Greater Involvement of People with HIV/AIDS (GIPA). Yet, the UNAIDS Caribbean regional office is based in Trinidad, a country where many of the people the organization serves are barred from entering.
The Belize act, which was updated in 2000, is less discriminatory than its Trinidadian counterpart. However it similarly bars the groups of persons listed above.
Though rarely enforced, the travel ban on homosexuals has been invoked, particularly by Trinidad and Tobago. The most notable instance was in 2007 when church groups complained that Sir Elton John’s planned performance at a concert was illegal, and likely to convert impressionable youth.
Freedom of movement and national treatment are entrenched rights in the RTC. The CCJ has the exclusive jurisdiction to adjudicate on any breaches of the treaty, and in a 2013 decision, Myrie v Barbados, the court clarified the liberal interpretation of these rights.
The very political nature of CARICOM requires that citizens, like AFW’s Jamaican employee, must first ask their home state to bring a CCJ action on their behalf. Only if the state refuses can the national approach the court for special leave to pursue the matter themselves. As an international court, the CCJ is only empowered to act when actual harm has occurred.
An application for special leave was filed with the CCJ on May 31, 2013 (Tomlinson v Belize and Trinidad and Tobago). Both Belize and Trinidad resisted the application, however, at the hearing on November 12, the court heard from both governments that there was no intention to enforce the laws. When the court then inquired as to the need for these unenforced statutes, the senior counsel representing the Republic of Trinidad and Tobago indicated that the law was necessary to keep out terrorists(!)
In a unanimous decision the 5-member panel found that the travel ban created an arguable case of prejudice. Specifically the court stated: “In relation to homosexuals, there is indeed international case law, in particular jurisprudence of the European Court of Human Rights and the UN Human Rights Committee which suggests that under certain circumstances the mere existence of legislation, even if not enforced, may justify a natural or legal person to be considered a victim of a violation of his or her rights under an international human rights instrument.”
On July 24 the CCJ gave the governments of Belize and Trinidad until September 16 to file their defences. The usual case management hearing will follow at which time a trial date will be set. This is not expected before 2015.
Although narrowly framed as a Caribbean case, the likelihood is that if successful, this action would strike down the anti-gay sections of the immigration laws. This would benefit citizens from every country in the world. The case also has implications for the decriminalisation debate across the Caribbean where several court challenges are seeking to repeal British colonially imposed anti-sodomy laws. The fact that the region’s highest court took judicial notice of the harmful impact of unenforced laws that discriminate against homosexuals will be significant in these cases.