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My court case could see Jamaica follow India and make gay sex legal

My court case could see Jamaica follow India and make gay sex legal

Marchers at Montego Bay Pride in 2016.

The Indian Supreme Court’s historic judgement decriminalising homosexuality has given me new hope I may soon have my day in court to challenge Jamaica’s law.

Few people know this – but the anti-gay law in Jamaica is a direct descendent of India’s law. The British Empire criminalised homosexuality in India first, then copied that same law into their other colonies.

It is almost a month now since the Indian Supreme Court published its comprehensive 495-page judgement on 6 September.

Not only did they make same-sex intimacy legal – they also made history. That single court decision was the biggest moment of sexual liberation in our history – affecting a country with a population of over 1.3billion people.

The rights of minorities don’t depend on the size of that minority

The Indian Supreme Court’s decision was unusual in legal terms, because the court overruled itself.

The Delhi High Court had already decriminalised homosexuality in 2009. The judges declared the British colonial law, section 377, was unconstitutional.

That decision applied to the whole of the country – not just to the capital city territory of Delhi – because constitutional court rulings in India apply nationwide.

But the Indian Supreme Court overturned the Delhi High Court decision in 2013. In a deeply problematic ruling, a panel of supreme justices argued the law violated the rights of only a small minority of LGBT citizens. This small number, they ruled, meant it was not an affront to India’s constitutional democracy.

In truth, any first-year law student could explode this profoundly flawed logic. It reflects a fundamental misunderstanding of how constitutions work in a democracy.

Fortunately, this year, the Indian Supreme Court took a different view.

By referencing cases from other former British colonies, such as Belize and Trinidad, the new ISC bench wisely declared that rights such as human dignity must always triumph over the dictates of the majority.

Otherwise, any majority group could claim they had the democratic right to simply annihilate their opponents.

India had a long history of same-gender intimacy

Indeed, history is replete with examples of oppressive powerful groups trampling on the rights and lives of defenseless individuals in pursuit of some misguided and deadly ideology.

Many former British colonies were born out of anti-oppression and anti-colonial struggles. So it is natural they entrenched human rights in their independence constitution.

For example, Britain’s brutal Indian Raj sought to eliminate much of India’s culture that the colonizers found problematic. India had a long history of same-gender intimacy – and both Indian culture and religion celebrated it. For the British rulers, this was unacceptable.

Could the Indian Supreme Court decision change the world?

But thanks to the Indian Supreme Court, three-quarters of the world’s population now live in jurisdictions where LGBTI people are not criminalized for whom or how they love.

Moreover, the impact of India’s judgement could be even bigger than that.

The Indian Supreme Court decision is not binding on other Commonwealth country courts that have anti-sodomy law challenges before them. But the India judgement was comprehensive and will still be very persuasive.

As the Indian judges noted, the British colonizing project exported India’s anti-sodomy law across the Commonwealth.

Firstly, has Britain apologized for imposing and exporting this law. But also, most Commonwealth countries have similar rights in their constitutions.

The ISC has cited and developed comparative law from across the Commonwealth on critical arguments such as how the anti-sodomy law violates rights to dignity, freedom of expression, health (especially combating HIV), non-discrimination on the grounds of sex, and an expansive understanding of the role of constitutions in democracies to protect minorities against abuse.

Lawyers can immediately apply these arguments in all the anti-sodomy law challenges currently before courts around the world. They would be also of relevance in any future, anticipated challenges that invoke one or more of the rights addressed by the ISC.

Meanwhile I wait for justice on my case against Jamaica’s sodomy law

Meanwhile, I mounted my own constitutional challenge to Jamaica’s version of the archaic law in 2015.

Since then, my case has been languishing while the Court of Appeal decides whether the Public Defender has a right to join the case.

I do not have any timeline for when my case will move forward. In fact, the court’s timetable is holding me hostage, unable to move things forward. This is clearly a case of ‘justice delayed is justice denied’.

While I wait for justice the rest of the world is moving on to accept that the inherent dignity of human beings includes a right to our own bodies.

That is what emancipation from mental and physical slavery (to paraphrase Bob Marley) entails. This is a concept that Jamaica’s postcolonial society and constitution should reflect.

I hope to have my day in court to demonstrate to the world just how far Jamaica has progressed as a constitutional democracy. I pray that day will come soon.

Maurice Tomlinson is a lawyer and LGBTI advocate from Jamaica.

Also on Gay Star News

https://www.gaystarnews.com/article/after-india-decriminalizes-gay-sex-next/

https://www.gaystarnews.com/article/forced-to-flee-jamaica-fearing-for-my-life/#gs.vVhW4Q0

https://www.gaystarnews.com/article/homophobic-economies-losing-out-on-billions/#gs.4WrYB_0