(WB) Same-sex sexual activity is no longer illegal in Trinidad and Tobago as the country’s High Court on Thursday deemed the homophobic colonial clause unconstitutional, infringing on a person’s right to privacy, illegal, null and void. The law, however, has not been removed just yet as the involved parties must submit their recommendations for either removal or amendment.
Justice Devindra Rampersad delivered his ruling for the matter of constitutional redress between Jason Jones and the country’s attorney general. Jones, an activist, was suing the state for the removal of Sections 13 and 16 of the country’s Sexual Offenses Act.
Regardless of consent or not, Section 13 criminalizes sodomy, either between a man and a woman or between two men.
Sodomy carried a maximum sentence of 25 years. Section 16 criminalizes acts of “serious indecency” which are defined as acts arousing the genital organs for sexual gratification. Heterosexual consenting adults, however, were exempted from serious indecency when committed in private, but between persons of the same sex were not.
The colonial laws were not enforced in the country, and no one has been charged for committing these offenses in recent times.
Trinidad and Tobago, like many other Commonwealth countries, still has colonial laws on the books because of a savings clause that was enacted when it gained independence. Saving clauses were put in place to ensure the country’s new government would not infringe on the existing rights of the people during colonialism.
“The retention of the law seems to have everything to do with homosexuality and the abhorrence to the colonial practice which has been retained by the state,” said Rampersad.
Section Four of Trinidad and Tobago’s constitution discusses the rights enshrined to citizens and includes “the right of the individual to equality before the law and the protection of the law.”
Using this part of the country’s constitution to help determine his ruling, Rampersad said, “There is no doubt in the court’s mind that the impugned sections infringe upon the claimant’s fundamental rights.”
The Trinidad and Tobago Council of Evangelical Churches was among the interested parties. It was demanding the law remain on the books as those acts went against their religious beliefs.
Rampersad said the matter was a legal one and not a religious issue. He preceded his ruling by stating, “Trinidad and Tobago is, and was, a secular state and as such this case could not be determined on the basis of religious belief.”
Attorney General Faris Al-Rawi has confirmed the government will appeal Rampersad’s ruling.
“If you leave this matter simply at a High Court judgment level, you may run the risk of another High Court judge with a contradictory point of view,” said Al-Rawi. “The government’s role therefore is important in appeal so that the law ought to be settled.”
Plaintiff: Ruling ‘a stunning victory for human rights’
Jones told reporters as he left the Hall of Justice that he will not relent until all citizens have true equality, including marriage and adoption rights.
“I am not going to tolerate second class citizenship in this country anymore, and neither will the judge today,” he said. “That is why I am victorious.”
When asked about the religious entities who wanted to keep the contentious clauses, Jones said while everyone is entitled to their opinion, Trinidad and Tobago, as a multiethnic, multicultural country has always been accepting of each other’s differences and now that will include the LGBT community.
“It was a stunning victory for human rights and for all Trinidad and Tobago citizens,” he said. “We must all come together after this judgment and embrace each other in true love, respect and honor for each citizen. This is not about LGBT; this is about the rights and freedoms enshrined in our constitution.”
Jones, who challenged the sodomy provision in 2017, is aware his battle is not over and expected the ruling would have been appealed and will reach the Privy Council, the highest court of appeal in Trinidad and Tobago. He is confident, however, he will be successful in the Privy Council after Thursday’s ruling.
“I do expect the attorney general to appeal and that’s fair,” he said. “He has a very difficult job. He is not just looking after my interest but the interest of the nation so I am happy to go to the Privy Council with this.”
Jones believes it will be another three to four years until his case is fully finished, but noted he is not just fighting for Trinidad and Tobago because other Commonwealth countries have similar homophobic laws.
“What I want to make clear to people that the human rights issue is not just local, this is a global issue,” he said. “Over 75 million Commonwealth citizens are criminalized using similar laws, 37 Commonwealth nations criminalized similar to Trinidad. But it was just shut down by one, it is now 36.”
Activist shoved during protest outside High Court
Before the ruling was read, more than 100 members of the LGBT community along with allies and their supporters gathered in Woodford Square outside the Hall of Justice to witness the historic event.
The supporters turned out in their placards and rainbow flags to rally around Jones and hear the ruling. This was organized by the Alliance for Justice; a coalition of activist groups such as the Coalition for the Inclusion of Sexual Orientation (CAISO), Friends for Life, the Woman’s Caucas, Womantra and the Silver Lining Foundation.
“I feel free, confident,” Varoom Beetan, 24, told the Washington Blade on the steps of the Hall of Justice. “If we win or lose, it doesn’t matter because I am proud of who we are and we will persist.”
Lancelot Petit, 18, painted NOH8 on his face and said, “I really just here to stand for we rights. I am hoping for the best, but so many people saying that if it passes, Trinidad will get worse with World War III or something, but how much worse can it get?”
Not all who were outside the Hall of Justice were there to support Jones’ case.
Members of the Jamaat al Muslimeen, a group responsible for the 1990 coup attempt, gathered outside to express their disagreement.
One of the members got into an altercation on the steps of the High Court with an activist. He spat on, cursed and shoved her. However, they both walked away from the stand-off, and she was able to report the matter to the police.
Members of the Rastafarian community and Christian churches were also on the scene to protest.
When news broke of the favorable ruling, however, cheers erupted outside of High Court.
The national anthem was sung and many people embraced each other celebrating equality.
This public display of Pride is something that Trinidad and Tobago has never experienced, as many members of the LGBT community feared being outed or victimized. For the past week however, the community was present, active and visible in both their activism and taking up space in the public sphere.
For weeks, Christian activist group, Trinidad and Tobago Cause held demonstrations outside Parliament to demand the “preservation of the family,” insisting marriage for same-sex couples should not be permitted in the country in spite of the case in the High Court revolving around removing archaic laws.
More than 200 hundred people on Monday showed up outside the Parliament to show the government the community deserves equality under the law. The Silver Lining Foundation on Tuesday hosted the premier of “Love, Simon” in a public multiplex. These displays of Pride are among the largest that the Trinidad and Tobago community has held in the public sphere.
LGBT events are usually held privately or in specific safe spaces, for the protection of the community.
— Rachael Espinet, Washington Blade courtesy of the National LGBTQ Media Association.