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LGBTQ rights in Jamaica

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Through Bisexuality, Transgender and Conservatism

Jamaica has long held strongly conservative views towards homosexuality, with polls from 2023 stating that the majority of Jamaicans, at least 60%, are against the acceptance of homosexuality. Most of the population is affiliated with Christianity and the Rastafari movement, which have both encouraged negative feelings towards homosexuality. Discrimination and violence against LGBTQ persons are very common and LGBTQ people in Jamaica often remain closeted to avoid discrimination or harassment. In 2006, Time magazine labelled Jamaica "the most homophobic place on Earth", and in 2013 the majority of LGBTQ people in the country said they were subject to homophobic violence in public.

The government of Jamaica said in 2012 that it "is committed to the equal and fair treatment of its citizens and affirms that any individual whose rights are alleged to have been infringed has a right to seek redress." The government also claimed that "there is no legal discrimination against persons on the grounds of their sexual orientation" though there is widespread homophobia and a sodomy law (The Offenses Against the Person Act of 1864) that is still in effect.

Laws, policies, and the Jamaican constitution

History of the criminalization of LGBT individuals

Islands in the Commonwealth Caribbean adopted British buggery laws; however these laws were not as strictly regulated in the Caribbean as they were in the United Kingdom up until the Victorian era. Prior to this era, recounts were made of the island's British occupants engaging in sodomy, which may correlate with the fact that the first colonists were mostly men. The slave communities in Jamaica and the rest of the British Caribbean were made up of men and women from West Africa, the men being more sought after by slave owners. In England, the Buggery Law of 1861 was liberalized in 1967. By this point, Jamaica had already gained its independence in 1962, and thus its buggery law adopted from the British constitution, remained intact and is still in force to this day.

Laws against same-sex sexual activity: The Offences Against the Person Act (1864)

Jamaica's laws criminalize the status of being LGBTQ and criminalizes associated homosexual conduct, including anal sex, oral sex and any sex between 2 men or 2 women. The Offences Against the Person Act (OAPA) provides as follows:

Section 76. Unnatural Offences. Whosoever shall be convicted of the abominable crime of buggery, committed either with mankind or with any animal, shall be liable to be imprisoned and kept to hard labour for a term not exceeding ten years.

Section 77. Attempt. Whosoever shall attempt to commit the said abominable crime, or shall be guilty of any assault with intent to commit the same, or of any indecent assault upon any male person, shall be guilty of a misdemeanor, and being convicted thereof, shall be liable to be imprisoned for a term not exceeding seven years, with or without hard labour.

Section 79. Outrages on decency. Any male person who, in public or private, commits, or is a party to the commission of, or procures or attempts to procure the commission by any male person of, any act of gross indecency with another male person, shall be guilty of a misdemeanor, and being convicted thereof shall be liable at the discretion of the court to be imprisoned for a term not exceeding two years, with or without hard labour.

"Gross indecency" is not defined by the OAPA but has been interpreted as "referring to any kind of physical intimacy", including merely holding hands.

According to Human Rights Watch, regardless of how often persons are convicted of buggery or gross indecency, "the arrests themselves send a message." The Jamaican press publishes the names of men arrested for those crimes, "shaming them and putting them at risk of physical injury." The gross indecency law in Section 79 made LGBT persons "vulnerable to extortion from Neighbours who threatened to report them to the police as part of blackmailing schemes."

Section 80. Other matters. Any constable may take into custody, without a warrant, any person whom he shall find lying or loitering in any highway, yard, or other place during the night, that is to say the interval between 7 o'clock in the evening and 6 o'clock in the morning of the next succeeding day, and whom he shall have good cause to suspect of having committed, or being about to commit any felony in this Act mentioned, and shall take such person, as soon as reasonably may be, before a Justice, to be dealt with according to law.

Police have great discretion in detaining individuals under Section 80. This and other laws are used by police to detain LGBT men and women who are engaged in sodomy or other sexual acts or forms of intimacy with another man or women.

Decriminalization efforts

The European Parliament in 2005 passed a resolution calling on Jamaica to repeal its "antiquated and discriminatory sodomy laws and to actively combat widespread homophobia". Following Jamaican Prime Minister Portia Simpson's pledge that "no one should be discriminated against because of their sexual orientation", and that the government will seek a review of the buggery law (which did not happen), LGBT rights campaigner Maurice Tomlinson filed a case against Jamaica at the Inter-American Commission on Human Rights in February 2012. He had fled the country because of death threats after news about his marriage to his partner Tom Decker in Canada reached the local media. In February 2013, AIDS-Free World filed a legal complaint with the Jamaica Supreme Court on behalf of Javed Jaghai, who said his landlord kicked him out of his home because of his sexual orientation. In June 2013, the court began hearing the case. In August 2014, he was forced to withdraw his lawsuit, citing death threats and concerns for his personal safety and that of his family.

In November 2015, LGBT activist Tomlinson filed another lawsuit with the Jamaican Supreme Court challenging the constitutionality of Jamaica's laws criminalizing consensual sex between men, saying that the colonial-era statute violates several provisions of the Jamaican constitution, including the right to privacy. He also argues the sodomy law violates “the right to protection from inhuman or degrading punishment or other treatment.” The legal challenge is being supported by the Canadian HIV/AIDS Legal Network and AIDS-Free World. In February 2016, the court held a first hearing of the constitutional challenge. The Public Defender (PD) Arlene Harrison Henry applied to be joined as interested parties. It was adjourned to 26 April 2016 when the applications by the various parties were heard. In July 2016, the court blocked Henry from participating in the suit, and as a result, she sought leave to appeal the denial of participation to the court of appeal. The Supreme Court suspended the hearing of the case pending the decision of the Appeal Court. After a two-year delay, the Court of Appeal upheld the Supreme Court ruling barring Henry from joining Tomlinson in the lawsuit, leaving him alone in the case. A preliminary hearing was held attempting to block Tomlinson from making a Charter of Rights argument. The judge determined in 2022 that the issues could not be separated. There is no date set for the main hearing.

In 2012, a gay man named Gareth Henry and a lesbian woman, Simone Edwards, filed complaints at the Inter-American Commission on Human Rights. The two members of Jamaica's LGBT community have put themselves forward as petitioners in the case. Both claim they fled Jamaica because of those laws. Gareth Henry sought asylum in Canada in 2008 after enduring repeated attacks by homophobic gangs and police brutality, and said he was forced to flee Jamaica in fear of his life. Simone Edwards fled Jamaica and was granted asylum in the Netherlands in 2008 after two men in a homophobic gang fired shots at her house. They also tried to kill her two brothers, one of whom is gay. Six years later, in July 2018, The Inter-American Commission on Human Rights announced it would review whether it could make a case to challenge Jamaica's anti-buggery laws.

The IACHR in its report setting out the decision, acknowledged the victims' concerns about "violence and discrimination against LGBT people and the impact of buggery laws,” and noted that, “if proved, the alleged facts relating to threats to life, personal integrity, interference with private and family life, obstacles to the right of residence and movement, unequal treatment, lack of access to justice and judicial protection, and interference in access to health care, could establish possible violations of (…) the American Convention [on Human Rights]”. The Government of Jamaica has objected to the admissibility of the Petition and defended its anti-gay laws. The case remains pending, as of 2023. In December 2018, a Jamaican parliamentary committee recommended holding a national referendum on repealing the country's anti-sodomy law. The recommendation was criticized by LGBT activists, who felt a referendum was not needed and that people should "stay out of gays' bedrooms".

Efforts to increase criminal penalties

In 2009, Ernest Smith, a Labour Party member of Parliament, stated during a parliamentary debate that "homosexual activities seem to have taken over" Jamaica, described homosexuals as "abusive" and "violent", and called for a stricter law outlawing homosexual conduct between men that would impose sentences of up to life in prison.

Absence of laws protecting LGBT people from discrimination

The Civil Service Staff Orders of 2004 (which have the force of law) protect Jamaican civil servants from discrimination on the grounds of sexual orientation. According to the Inter-American Commission on Human Rights, Jamaica has "no law which prevents discrimination against an individual on the basis of his or her or their sexual orientation, gender identity, or gender expression. There is no legislation addressing hate crimes in Jamaica."

Jamaican Charter Of Rights

In 2011, a national Bill of Rights was formally added to the Jamaican Constitution (Chapter 3). While it does guarantee all citizens numerous civil and political rights, it pointedly stipulates that the charter does not invalidate laws dealing with sexual offenses, pornography, or "the traditional definition of marriage".

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