IACHR

Speech by Commissioner Rose-Marie Belle Antoine

 

SEMINAR “STIGMA AND DISCRIMINATION BASED ON SEXUAL ORIENTATION AND GENDER IDENTITY IN THE COMMONWEALTH CARIBBEAN”

Barbados, October 11, 2012


SEXUAL ORIENTATION: SPECIAL REFERENCE TO THE CARIBBEAN

I stand here this evening in a dual capacity as Commissioner, and of course a member of this Faculty of Law, University of the West Indies. What we are looking forward to is a diverse and vibrant panel and audience participation, so my task here today is to frame this discussion so as to achieve such a result.


The Role of the Academy

The fact that this discussion is taking place today at the academy is very important. Most of the information we have been exposed to is what we have heard from the talk shows and similar channels. Although I am of the view that this discussion should take place there as well, there is a need for such dialogue to occur in an impartial, dispassionate environment. The university, especially the Faculty of Law, provides the intellectual space for such a discussion and at the same time allows public engagement. I consider this to be very significant.


Commission not insular

This session taking place here in Barbados demonstrates that the Inter American Commission on Human Rights (the Commission) is not simply sitting in Washington making decisions for everyone else. It is willing and eager to bring the issues to the people of the region. This is not at all an insular approach.

As a Commission, we continually hear matters of “profound significance” in people’s lives. For example, as we sit here, Haitians born in the Dominican Republic are being denied citizenship and rendered stateless. Further, persons persecuted in their home countries are being denied asylum and immigration status in other countries of the region. In these matters, race appears to be an important variable.

There is no issue more important than the subject of an individual’s personhood, their very identity, not just their sexual identity, but their very sense of being. Sexual identify cannot be divorced from the “self”. It is in that context that we consider this extremely important issue of discrimination on the ground of sexual orientation as it relates to human rights.

Coincidentally, I also heard on the news that today is “coming out day”, a day in which persons can celebrate their sexual orientation.


Special emphasis by the Commission

The Commission has determined that LGBT rights are a subject that requires urgent and serious attention. As such, it has been included in its Strategic Plan, since 2011 and a special unit has been created to deal with these issues to ensure that the thematic emphasis is not lost. The Unit is headed by Victor Madrigal with the support of Fanny Gomez and Mario Gomez, the latter two who are present today.

We are determined to discuss this issue fully and provide support for the development of a policy framework that will be entirely consonant with human rights. Accordingly, we will continue to hold special hearings on the matter as well as receive petitions and provide educational input to this important issue so as to enhance its visibility.


Participating in the Dialogue of Human Rights

I reiterate that I view human rights as an evolving force centred and cemented in the lives of all peoples. They must be allowed to participate, to engage in the dialogue about human rights. The process cannot be a monologue.

I hold the unwavering belief that the development of human rights must take place with the “full engagement” of the particular society. It is neither something to be “inherited” totally, (whether from our former colonial masters) nor imposed upon us. As I stated recently in Trinidad and Tobago, “We have to engage; we must contribute to the dialogue”. “We must be a part of this evolving human rights culture and it is indeed evolving”.

This means that we must “challenge ourselves”, open ourselves up for reflection and examination. There is perhaps no other topic that is “ripe” for such debate and review than the issue of sexual orientation.


Our Current Values – Are they our own?

I am often bemused when I hear persons say that they do not want these “foreign ideas” coming to our shores. At least, when one is speaking about the law, the legal principles that surround this debate are very much from ‘a foreign’, or ‘from the cold’. Such ideas were never and are still not (but very much needs to be), an expression of our own intent to shape our laws and policies according to the fundamental norms of our societies that we profess to believe in.

Sodomy laws in our criminal law systems that prohibit “the act” were not products of our own desires; they were not the result of deep reflection about the nature and direction of our societies, much less the saving law clauses in our Constitutions that seek to preserve and entrench these laws.  This is even more of a desire and intent to hold on to what was ‘foreign’, which is quite ironic.


Essential Truths about Human Rights and Personhood

However, as we move toward a better understanding of this issue of sexual orientation, I think that there are some inescapable “truths” that we must confront.

The first, is that without exception, international law holds us to a commitment to provide protection against discrimination on the basis of sexual orientation. This can now be viewed as a universal standard. While the content of that protection may still need to be measured precisely, in terms of  what does and does not constitute discrimination in this arena (for example, does it include same sex marriage?), that does not take away from the universal principle of non-discrimination.

The other fundamental principle to note is that human rights proclamations and protective provisions are issued in the language of personhood, not overlaid by consideration of identity.
For example, the American Convention and American Declaration state that ‘Every person…is given rights”, while Art. 24 of the Convention states that all persons are equal before the law.
Thus, there is no concept of an identity artificially constructed by society to distinguish individuals, in the sense of ‘to make apart from others’. Therefore, rights secured to persons are not to be differentiated by race, religion, class and certainly, and certainly not by sexual identity.

This is the fundamental error that those who speak only of morality as a limiting, instead of a liberating principle make. I reject this notion. The essence of such rights is located in personhood.

This is so whether we are speaking of civil and political rights or economic and social rights, such as a person being entitled to work, to be educated, having a house, getting a pension and having access to healthcare, regardless of his or her sexual orientation.

To the extent that our Constitutions and our law fall short of these standards, we have failed as a society. Note that a main reason today for this constitutional shortfall is because of saving law clauses framing the issue; artificial contrivances, inserted almost by accident into our young Constitutions. We must, therefore begin the initiative toward constitutional amendment, if that is what it will take for real equity.


What is The Real Context of the Problem of Sexual Identity? What are we condoning?

The issue of sexual orientation is not simply a moral or a religious issue presented in a theoretical package. It confronts concrete examples of life and death situations because it addresses some of the most horrific forms of violence known to our supposedly peace loving, friendly and warm nations, where our national mantra is “no problem”.

We have seen examples of violence meted out against perceived homosexuals, in particular, that we would never tolerate even against the worst known drug barons, murderers or other criminals in the society.

Numerous reports on violence against individuals simply because of their sexual status have been heard by the Commission in special hearings. Many of these involve horrific examples of violence, such as in Jamaica, but they also include incidences in Barbados and elsewhere in the region. Consider, for example one such instance of violence aired in the Commission’s special hearing on October 2010. (Hearing No. 26). In this incident, in a house in Mandeville, a group of fifteen to twenty men attacked four men they believed to be gay. In addition, in 2007, JFlag reported forty-five cases of homophobic abuse in Jamaica alone.

What does this say about our humanity, about our own morality?

There are those righteous among us who might say “we have never condoned violence”. But that assumption of innocence ignores the reality that violence is often born out of skewed perceptions, misconceptions and misunderstandings, which flow from our words. They create value systems, they create fear. Words have power, they incite the emotions. We saw it in Hitler’s Germany. We saw it in Rwanda. We even saw it in the Trayvon Martin killing in the USA.

When we so totally condemn homosexual men or women for daring to exist in their skin; when we objectify such persons as an evil to society, what message do we send? I do not wish to enter into the religious debate, but this condemnation seems very far from the central message of peace, love and understanding that is within the Bible.

 I believe, therefore, that we have to accept responsibility for violence against such persons. I am reminded that in law, the question is asked: Who in law is our neighbour, when assessing responsibility for harm?

We can also speak of the harassment that persons are subjected to because of their sexual orientation. It is important to note, that it is now accepted that sexual harassment can include denigrating remarks about one’s sexual orientation. Sexual harassment does not only involve heterosexual relationships. It can also include same sex harassment (Oncale).


Several Levels of Discrimination

What is more disturbing are the several levels of discrimination, both direct and indirect, de jure and de facto, often reinforcing some of the worst forms of prejudice already inherent in our societies. For example, human rights activists have made the link between homophobia and poverty,a class paradigm to which other forms of discrimination, such as race, HIV and even gender intersect.

The late, renowned sociologist Robert Carr, for example, documented the experiences of gay Jamaican communities and identified a pattern of a predominance of violence against working class gay men.  He viewed the law and legal authorities as actually condoning both discrimination and violence.


Direct and Indirect Discrimination

Discrimination is also evident in the way in which the HIV epidemic impacts on the LBGT community, directly, because of their vulnerability or indirectly, because of discrimination due to stereotyping. This is a disproportionate impact. This includes acts of sexual violence against members of the community where the victims are unprotected, for example where no condom is used.


Discrimination and Violence prevent the Delivery of Justice, Economic and Social Rights

From our hearings, petitions and reports, we at the Commission have also learnt of another subset of discrimination in relation to sexual orientation. LBGT communities feel compelled to go ‘underground’ and this prevents them from accessing healthcare and also undermines public health efforts. This phenomenon includes:

(a)The fear of accessing the justice system
(b) Profound social vulnerability and marginalization and
(c) Persons who are forced into hiding when they are victims of crimes as a result of their sexual orientation.

One of Trinidad and Tobago’s NGO (TTAVP) reports that:

. . . They have no confidence that health care providers, protective services, or even NGO’s specializing in support for victims of sexual violence will not simply revictimize them. They refused to accept TTAVP’s offers of peer and professional counseling services, free medical exams, STI screening etc.

In other words, there is a complete breakdown of the social support system. There have been continuous reports of discrimination even in the health sector, for example, refusing medical treatment for HIV, or poor treatment, where the person is a LGBT person.


Employment context

There is also evidence of discrimination in the context of employment. Opportunities for work and to sustain work are lessened due to prejudice. This is exacerbated due to the continued perception that there is a necessary link between HIV and homosexuality, especially with regard to men.

It is true that there are no laws prohibiting persons from working based on gender and sexual orientation. However, there are no proactive protections either and this helps to fuel discrimination.


Distinction between prohibiting the Act and prohibiting the Identity

It is important to note, that the legal restrictions that exist with regard to sexual orientation in the Commonwealth Caribbean, relate to the act of intercourse itself. The law, formally at least, does not target a person’s status or being. Consequently, this should have no legal bearing on a person’s capacity to find work or maintain work. Nonetheless, often it does.

We have proceeded on the basis that because sodomy, the act of anal intercourse (and cross dressing) in Guyana are criminalized, this must necessarily filter through to prohibiting homosexuality in of itself. This is inaccurate. There is a distinction to be made between the offence of sodomy and the attitude of the law toward sexual identify, albeit the two have become intertwined in the hysteria. It is also the case that the legal distinction is artificial and it would not be desirable to enforce the law strictly, without redefining the social mores that accompany it.

There was a suggestion of this conceptual inaccuracy even in Surratt v. Attorney-General of Trinidad and Tobago.  In addressing general norms of anti-discrimination on sexual orientation, the Court felt, erroneously, in my view, that it could not condone what is specifically unlawful and that was the basis for denying protection from discrimination. However, I think that a challenge could be legitimately made, for example, if a person is denied a job on the basis of his or her sexual orientation, or dismissed from employment. Certainly, that is the attitude of the common law, and unreservedly, that of international law, so it could easily be grounds for an unfair dismissal case.

One of the evident problems is that the criminalization issue has dominated the conversation. To reiterate, under our existing law there is no authority to discriminate against a person on the basis of his or her sexual identity or orientation. The law can only prosecute “the act”. However, due to the misconception about the law and the continuing acquiescence of the society, it continues to provide a safe haven for discrimination. One activist speaks of the law as an “umbrella under which “the police” feel free to single out (profiling), harass and threaten men they perceive to be gay or who state that they are gay” [Carr]


Negative expression of a right

As an initial step, we are not asking the law to be proactive and do anything, but we are demanding of the law that it not do something, and that is not to criminalize. In sexual orientation situations, a ‘hands off’approach is being proposed; an application of the ‘harm principle’ which proceeds on the assumption that personal liberty should only be abrogated to the extent that it harms others.

There is perhaps room for an incrementalapproach to this persistent societal issue. For example, Montserrat has recently accepted  a provision granting protection from discrimination and notions of equality in relation to sexual orientation, but specifically precluded same sex marriage. This is of little comfort to many, but it is a start. There is perhaps need for time to reflect, to gather evidence, to examine our fears as to what will or will not happen if we change.


Limited amount of cases brought before the courts

There is also a problem with regard to the fact that very few cases on anti-discrimination in general, and sexual orientation in particular, are being brought before the courts. As such, there are few opportunities to test the limits of discrimination and the parameters of the law. This also means less opportunities for the society to think about these issues seriously. The Selgado Case from Belize is an important exception.
Even before the Commission, there are still relatively few cases and we await eagerly petitions from the Caribbean. I can mention the case of Karen Atala from Chile, which involved a judge who was subjected to disciplinary proceedings. One complaint was that her sexual status was viewed by her employer’s as damaging ‘the image of the judicial branch’, a position rejected by the Inter- American Court as being a clear violation of Art. 24 of the IACHR.


Belize case

It is well known that a landmark case on the constitutionality of the sodomy laws is currently before the Belize courts. Very recently, an application on behalf of the church was filed to strike out the United Belize Advocacy Movement (UNIBAM), which is one of the applicants. This was on the basis that the redress clause of the Constitution of Belize says that the breach of the Bill of Rights must be “in relation to him” and it was argued that since UNIBAM is not a natural person, one cannot argue that the any wrong has been suffered. This, therefore, is a question of locus standi. The court agreed and struck out UNIBAM. An application for UNIBAM to be added in a representative capacity under the rules had to be filed.  

Interestingly, in addressing the matter of whether the Catholic Church had standing, the judge saw the issue as a moral one, since “all laws” including the Constitution must be based on morality, which it defined as emanating from religion. Moreover, the matter was framed within the context of preserving public order.  

This raises the question of what is a moral order and whether or not it has to be based on religion. This further begs the question if the answer is ‘yay’ - of what religion? Are the answers in Trinidad and Tobago different, given the multi-religious make-up of that society?  The age old question of whether the law should be based on morality is once again brought to the fore. In my view, the law is best suited to take account of moralitywhen it professes to give rights, as opposed to taking away rights, which it seeks to do in these sexual  orientation cases.


Pragmatic Approach to Employment etc

From a pragmatic approach, discriminating against, and thereby excluding LBGT persons, results in a large section of the society being rendered not only marginalised, but also unproductive.  The Commission has heard of accounts, for example, of many persons who are fearful to work, or cannot get work, so they resort to sex work (for which there is plenty demand it would seem, despite the society’s professed disapproval of same sex liaisons).

If we are truly interested in development, are we really willing to condemn a high percentage of productive workers to oblivion? To a huge extent, this was the same issue we faced when women were discriminated against in the workplace. If statistics are to be believed,  there is a very high proportion of homosexual and bisexual men in Barbados,  which according to a report by the CMO a few years ago, accounts for over 60% of the male population, many of whom are married.


Lesbians left out of the Movement

My final point concerns the nuances even within the LGBT community. My colleague Tracy points out that lesbians feel excluded in the LGBT movement. Is it necessarily a bad sign that gender issues prevail even in these discriminatory environments? I think that perhaps the focus is on homosexual males because they threaten the status quo and the male construct of power more so than do lesbians. An interesting and alarming spin-off is what can be labeled a hetero-patriarchical society. Again, this is reinforcing the several levels of discrimination that persons face on account of their sexual orientation. Lesbians are often seen as ‘titilating’, except where there is a woman who ‘is like a man’ and thereby threatens the notion of the man as the dominant power.

Yet, it is easy to generalize, since recent reports reveal an increasing level of violence against lesbians also.

These, therefore, are the paradigms that surround the issue of Sexual orientation in the region. We at the Commission, are committed to do our part to bring justice and equity to this arena.


Professor Rose-Marie Belle Antoine
Commissioner, Inter-American Commission on Human Rights
September 2012, Barbados