Trinidad and Tobago: IBAHRI condemns recriminalisation of same-sex intimacy
The International Bar Association’s Human Rights Institute (IBAHRI) condemns the Court of Appeal’s decision in the Republic of Trinidad and Tobago to recriminalise same-sex intimacy and overturn the 2018 ruling declaring section 13 and 16 of the Sexual Offences Act 1986 unconstitutional.
IBAHRI Co-Chair Mark Stephens CBE commented: ‘The impact of this can and should have an impact on tourism and trade. Consequent upon the United Nations Guiding Principles on Business and Human Rights and the OECD Principles for Multinational Enterprises on Responsible Business Conduct, this new legislation means that employers will no longer be able to lawfully send, for fear of unwarranted discrimination and criminalisation, to Trinidad and Tobago, any LGBTQIA+ staff via international airlines or, for example, to work in the oil, gas and petroleum sectors or hotels. In taking this discriminatory step, the Trinidad and Tobago government has painted targets on the back of all international business and trade that could otherwise bring inward investment to the country. In doing this the government is foolhardily hobbling its own economy.’
In 2018, Jason Jones, an LGBTQIA+ activist from Trinidad and Tobago, challenged sections 13 and 16 of the Sexual Offences Act, alleging they were unconstitutional. The High Court of Justice declared that those sections were indeed unconstitutional. However, the Attorney General appealed this decision, leading the Court of Appeal to reinstate the criminalisation of same sex intimacy.
Since Trinidad and Tobago first decriminalised same-sex acts in 2018, four Caribbean nations – namely Antigua and Barbuda, Barbados, Dominica, and Saint Kitts and Nevis – have followed suit.
Mr Stephens stated: ‘The IBAHRI, in the strongest sense, calls for Trinidad and Tobago to continue the trend towards equality, reverse its decision and return to being a regional leader in protecting LGBTQIA+ rights. There is no doubt that the decision to uphold laws that criminalise consensual same-sex acts shows a complete disregard for the fundamental human rights of LGBTQIA+ individuals. States that criminalise same-sex intimacy are in breach of their international human rights law obligations, since such laws violate the rights to privacy and non-discrimination.’
He added: ‘All states have an obligation to ensure that their laws and policies do not discriminate against LGBTQIA+ individuals. Similarly, states are bound to address discriminatory practices, including by private actors, and to take action to prevent, diminish and eliminate the conditions and attitudes that generate discrimination. As such, we call on Trinidad and Tobago to take the steps necessary to protect the human rights of the LGBTQIA+ citizens.’
Trinidad and Tobago is a signatory to the International Covenant on Civil and Political Rights (ICCPR). Section 13 and 16 of the Sexual Offences Act therefore breaches the twin-islands’ obligations under Article 17 (right to private life) and Article 26 (right to equality before the law and non-discrimination) of the ICCPR. Additionally, Trinidad and Tobago ratified the American Convention on Human Rights in 1991, therefore this recent decision infringes on members of the LGBTQIA+ community’s right to privacy under Article 11 and right to equal protection under the law under Article 24.
IBAHRI Co-Chair Hina Jilani commented: ‘The decision of Trinidad and Tobago’s Court of Appeal is the latest in a series of troubling developments in the Caribbean with respect to LGBTQIA+ rights. Jamaica and St Vincent and the Grenadines have both recently upheld laws criminalising same-sex intimacy, showing a similar disregard for the human rights of a targeted group. The Inter-American Commission on Human Rights [IACHR] urged Jamaica to repeal these laws, which violated the country’s obligations under the American Convention on Human Rights, however, no change has been observed.’
Ms Jilani added: ‘Laws that criminalise same-sex intimacy between consenting adults unfairly target LGBTQIA+ individuals and carry severe penalties. As a result, members of the LGBTQIA+ community in Trinidad and Tobago risk criminal prosecution and prison sentences simply for existing. The IBAHRI is fully committed to the decriminalisation of same-sex acts and relationships and is deeply concerned by this regression in the criminal justice system of Trinidad and Tobago.’
Research carried out by the IACHR revealed the devastating impacts that these laws have on the lives of LGBTQIA+ individuals in Jamaica. Studies revealed that criminalising laws serve as a license for abuse against LGBTQIA+ Jamaicans and perpetuates an environment where those engaging in same-sex intimacy are marginalised. Other studies show that criminalising the private acts of homosexuals subjects people also to societal prejudice, persecution and stigma, even if the laws are not enforced in practice.
IBAHRI Director Baroness Helena Kennedy LT KC commented: ‘Criminalisation of same-sex intimacy was introduced during the British colonisation of Trinidad and Tobago. By shielding colonial-era laws from constitutional challenge, Trinidad and Tobago has acted to legitimise the physical and psychological abuse carried out against LGBTQIA+ individuals in the country. Recent developments in the Caribbean have shown that decriminalisation is critical to fostering an inclusive society, and that inclusive laws can work to counter homophobic and transphobic discrimination. The IBAHRI urges the government of Trinidad and Tobago to take material steps to guarantee the full realisation of human rights for all its citizens, irrespective of their sexual orientation or gender identity.’
In a 2010 Resolution, the IBAHRI Council expressed its firm opposition to discrimination against any person on the grounds of their sexual orientation or gender identity.
ENDS
Contact: IBAHRI@int-bar.org
Notes to the Editor
- Click here to find out more about the IBAHRI’s work relating to sexual orientation, gender identity and human rights.
- The International Bar Association’s Human Rights Institute (IBAHRI), established in 1995 under Founding Honorary President Nelson Mandela, is an autonomous entity working to promote, protect and enforce human rights under a just rule of law, and to preserve the independence of the judiciary and the legal profession worldwide.
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- The International Bar Association (IBA), the global voice of the legal profession, is the foremost organisation for international legal practitioners, bar associations and law societies. Established in 1947, shortly after the creation of the United Nations, with the aim of protecting and promoting the rule of law globally, the IBA was born out of the conviction that an organisation made up of the world's bar associations could contribute to global stability and peace through the administration of justice.
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