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A David and Goliath court battle with gay rights taking on religious hate in Jamaica

A David and Goliath court battle with gay rights taking on religious hate in Jamaica

Life is full of ironies.

Jamaican religious groups such as the Jamaica Coalition for a Healthy Society (JCHS) campaigned vociferously against the broadcast of a paid TV ad which did nothing more than exhort Jamaicans to respect the human rights of gays. Last week, the JCHS even admitted to writing letters to the TV stations threatening them with retaliation from Jamaica’s powerful church lobby, if the ads were aired.

Church leaders like Reverend Len Anglin and Reverend Al Miller have also recently trumpeted they ‘have the numbers’ to prevent any attempt to advance the rights of gay Jamaicans; and are prepared to ‘die’ in the cause of retaining legally enforced discrimination against gays.

The JCHS has now applied to be joined as an interested party to the first ever domestic challenge to the Jamaican anti-buggery law. This constitutional claim, supported by AIDS-Free World, will have its first hearing on 25 June.

The claim was filed by young gay Jamaican, Javed Jaghai, after his landlady kicked him out when she found out about his sexual orientation. This righteous Christian lady asserted that as a homosexual, Javed would be committing a crime on her premises, but she would allow him to remain if he agreed to go to church and study the Bible with her.

Javed declined her gracious offer and is now simply asking the court to declare that his right to privacy of home and family life is being violated by the over-broad provisions in the anti-buggery law.

Accordingly, he wants the law to be ‘read down’ to exclude private acts of intimacy between consenting adults, nothing more. However, in court documents filed by the JCHS the group claims if the anti-buggery law is revised in this way then the freedom of expression of the church will be curtailed.

How, ‘pray’ tell? According to the JCHS, Christians will no longer be able to condemn homosexuality! The JCHS is therefore claiming buggery has to remain illegal so they can continue to enjoy the right to condemn it.

This sort of theocratic logic is simply irrational. Sadly, it is not uncommon on the island. JCHS has now been joined by the Jamaica Association of Evangelicals, the Ethiopian Orthodox Church, the Love March Movement and Hear the Children Cry who are all applying to oppose Javed’s claim in court.

More religious and virulently anti-gay groups are piling on all the time. This is really shaping up to be a David and Goliath battle (if you will pardon the religious analogy). So far at least three high-powered and expensive Queen’s Counsels have been retained to represent some six or more groups squaring off against Javed and his two junior lawyers employed to AIDS-Free World.

Jamaica might be experiencing a financial crisis but there is certainly enough tithes and offerings to fight gay rights!

The aim of this great flourish is clearly to drive home the point to Javed that people like him have no place and deserve no constitutional protections in Jamaica. And all of this is being done principally in the name of religion.

While recognizing theocratic logic can be impervious to facts, I will nevertheless gallantly remind the religious groups of a few. Firstly, the church can still condemn adultery, even though that has been legalized for decades.

The same would obtain if Jamaican gays can be intimate in private without fear of a 10-year prison sentence. Secondly, the recently passed Charter of Fundamental Rights and Freedoms entrenched the right to freedom of expression and goes further by adding a new right to disseminate ideas through any media.

This is possibly the most robust protection of freedom of expression in the world. It certainly goes well beyond the United States where the Westboro Baptist Church regularly mounts vulgar demonstrations condemning homosexuality, with no threat of prosecution. So, even if in other countries anti-gay speech has been banned, that simply cannot happen under Jamaica’s current constitution.

I would suggest the JCHS and their friends quit scaring themselves, their members and the rest of Jamaica with their hysterical, fact-free claims.

Given the country’s homophobic culture, I would hope they might also consider how their sensational assertions will incite further abuse of gay Jamaicans.

I am also sure there are far more urgent social and economic issues facing Jamaica that could benefit from the energy and resources of the church. For example, rather than trying to preserve a discriminatory and largely unenforceable colonial-era law, religious groups could turn their attention to combatting the still raging HIV epidemic in the island.

Ironically, the JCHS has been claiming that the anti-buggery law is necessary to control the Jamaica’s HIV epidemic. This is sheer fantasy. Allow me, through this medium, to share three irrefutable facts:

Fact one. In 2012, UNAIDS reported that, despite the presence of the law, Jamaica has the highest HIV prevalence rate among men who have sex with men (MSM) worldwide. At 32.9% Jamaica’s MSM HIV infection rate far outstrips that of France where the rate of 18% is said to be ‘out of control’.

Fact two. The anti-buggery law reinforces Jamaican homophobia. This in turn predisposes MSM to enter into false relationships with women as a cover for their sexuality.

Professor Peter Figueroa, former head of the national HIV/STI program and current head of public health, epidemiology and HIV at the UWI Mona, has found that fully 60% of Jamaican MSM also have sex with women. This fact allows for HIV to bridge between the two populations.

Fact three. The law, and its homophobic side-effects prevent effective HIV programing to curtail the spread of the disease.

For example, the HIV prevalence rate among male prisoners is several times that of the general population. However, the anti-buggery law creates a legal impediment to making condoms available in prisons. The result is men sometimes resort to plastic shopping bags to protect themselves, if they use any protection at all.

Needless to say, this is a very ineffective method of HIV prevention. Worse, when these men are released, they often engage in sex with multiple female partners to prove their virility. This again allows for HIV to bridge into the general population.

In sum, the anti-buggery law does not help with prevention efforts of HIV among MSM or in the general population. In fact, the law actually makes the situation worse, both for MSM and the women they end up sleeping with to mask their sexual orientation.

Children born of these couplings are also at risk.

I would also point out the anti-buggery law applies equally to heterosexual anal sex, and I don’t hear the JCHS thundering against buggering straight couples. I wonder why not?

It is a well-established principle of constitutional law that a statute that restricts the rights of citizens can only be justified if there is no other way to achieve the statute’s aims. In this regard it is important to remember the anti-buggery law infringes on the privacy right of gay Jamaicans with the supposed aim of protecting the public interest. It also infringes on the right of consenting adult heterosexuals to engage in consensual anal sex.

Above all, the anti-buggery law, while often used as a tool of intimidation by the police, is virtually impossible to enforce. The end result is a law that not only erodes fundamental human rights but serves to completely undermine the public interest, certainly as it relates to the control of Jamaica’s HIV epidemic. Is the country prepared to pay this price for the luxury of stigmatizing gays?