SOGIEI Litigation in the Caribbean and Latin America

Case summaries from Envisioning Global LGBT Human Rights blog (http://envisioninglgbtourwork.blogspot.com/p/law-and-human-rights.html) on legal challenges have been launched against anti-sodomy laws and related statutes in the Caribbean. 

BELIZE – Anti-Sodomy Law, Immigration Law

In Orozco v Attorney General of Belize, the claimant, Caleb Orozco, is challenging the constitutionality of Section 53 of the Belize Criminal Code. The provision criminalizes “carnal intercourse against the order of nature with any person or animal.” The penalty is 10 years in prison. The legislation is interpreted to prohibit anal sex between heterosexual and MSM couples. Mr. Orozco argues that this provision is inconsistent with the Constitution of Belize on several grounds. The law contravenes his rights to protection of family life, personal privacy, and human dignity under s 3(c); equality and equal protection before the law under s 6(1); freedom of expression under s 14(1); privacy under s 14(1); and non-discrimination under s 16(1).  The claimant draws on jurisprudence from various Commonwealth jurisdictions to inform the interpretation of s 53 and how equality, privacy, and expressive rights have been interpreted in countries such as Canada and South Africa.

In Tomlinson v Belize and Trinidad and Tobago, the applicant filed before the Caribbean Court of Justice to challenge Immigration laws in Belize and Trinidad and Tobago that discriminate against LGB persons. In Belize, s 5(e) of the Immigration Act categorizes homosexuals as prohibited immigrants.  Likewise, Trinidad and Tobago prohibits entry to homosexuals and persons reasonably suspected of coming to the country for a “homosexual purpose”. Article 45 of the Revised Treaty of Chaguramas requires all signatory states within the Caribbean Community to commit themselves to the goal of free movement of their nationals within the Community.  Both Belize and Trinidad and Tobago are contracting states to the treaty. Mr. Tomlinson argues that the Belize and Trinidadian statutes violate the Treaty to the extent that the countries infringe Mr. Tomlinson’s right to entry. Prior to arguing the merits, both countries have disputed the jurisdiction of the Caribbean Court of Justice to even hear the case.

GUYANA – Cross Dressing Rights

In McEwan v Attorney General, four applicants in the case were charged under s 153(1)(xlvii) of the Summary Jurisdictions (Offences Act). The provision criminalizes “being a man, in a public way or public place, for any improper purpose, appears in a female attire; or being a woman, in any public way or place, for any improper purpose, appears in male attire.”  The applicants contested that the law under which they were charged (and could still be charged in the future) was unconstitutional because it was vague and uncertain in scope and contravenes the prohibition against sex and gender discrimination and equality before the law (article 149 of the Constitution).  The court dismissed these claims. The court emphasized that the provision does not prohibit the wearing of opposite-sex attire, but merely the wearing of such attire for an improper purpose. The court did not find the word “improper” to be vague. Accordingly, the court found that the provision does not prohibit trans-gender dressing per se: wearing “attire” for the purpose of expressing one’s sexual orientation in public “is not improper or even capable of being viewed as improper.” The court found that the act does not discriminate on the basis of sex, because the prohibition treats both men and women in the same manner.

JAMAICA  – Television Public Service Announcements, Anti-Sodomy Law

In Tomlinson v Television Jamaica, two private television companies and the Public Broadcasting Corporation of Jamaica refused to air a public service announcement that promoted tolerance towards homosexuals. The claimant who wished to air these advertisements, Maurice Tomlinson, challenged the decisions as unconstitutional  under the newly-enacted Jamaican Charter of Fundamental Rights and Freedoms. Tomlinson argued that the networks’ refusal to air the advertisements contravened his rights to freedom of speech under section 13(3)(c), and his right to distribute or disseminate information, opinion, and ideas through the media, under section 13(3)(d).  The Court dismissed both of these claims.

Jaghai v Jamaica challenges the constitutionality of anti-sodomy provisions found in sections 76 and 77 of the Offences Against the Person Act (OAPA). Jahgai also challenges the criminalization of gross indecency between men, which encompasses non-penetrative activities including mutual masturbation and oral sex. The claimant, Javed Jaghai, shared his home with two other gay men. The claimant was evicted on the basis that the cohabitation arrangement would result in homosexual activity. The applicant, Javed Jaghai, argues that the criminalization of intimacy between consenting adults is unconstitutional on the basis that it contravenes the right to privacy found under section 13(3)(j) of the Jamaican Charter of Fundamental Rights and Freedoms, and in particular, the protection of private and family life under 13(3)(j)(i). The claimant also argues that the contested sections violate his right to equality under s 13(3)(g) of the Charter.

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