PORT OF SPAIN, Trinidad – A High Court judge in Trinidad and Tobago ruled last week that the part of the twin-island republic’s Sexual Offences Act which criminalizes sexual activity between homosexual men – whether consensual or not – is unconstitutional.
And while the local – and regional – lesbian, gay, bisexual, transgender, queer and intersex (LGBTQI) community hailed the judgement handed down by Justice Devindra Rampersad, the legal battle continues as buggery is still against the law, since the legislation has not been struck out and the government of Trinidad and Tobago has already signalled it plans to appeal the ruling.
Under Section 13 of the Sexual Offences Act, buggery between a consenting male and female or between two consenting males is an offence, and a person found guilty of such an office could be jailed for up to 25 years.
In his decision in a case brought by gay rights activist Jason Jones – born in Trinidad and Tobago but living in Britain – who challenged sections of the Sexual Offences Act, Rampersad declared Sections 13 and 16 of the legislation “unconstitutional, illegal, null, void, invalid and are of no effect to the extent that they criminalize any acts constituting consensual sexual conduct between adults”.
He said the legislation contravened Jones’ rights to privacy and family life.
“The claimant, and others who express their sexual orientation in a similar way, cannot lawfully live their life, their private life, nor can they choose their life partners or create the families that they wish,” he wrote in his 58-page ruling.
Reacting to Rampersad’s judgment, Jones said: “It was a stunning victory for human rights and a victory for all citizens of Trinidad and Tobago. This is not just about LGBT, this is about the rights and freedoms enshrined in our Constitution.”
During the hearing, the State had argued that the legislation has never been enforced against consenting adults. But Rampersad contended that maintaining an unenforced law on the statutes “makes no logical sense and, instead, seems more vindictive than protective or curative in manner, as if to hold a ‘big stick’ over a minority to try to enforce a portion of society’s morality over it”.
“The fact that the State proscribes against it quite obviously validates society’s feelings against anyone who does call himself a homosexual, to the extent that society may possibly feel justified in denouncing the practice forcefully or physically,” he added.
However, the judge stopped short of throwing out the legislation, and instead indicated that he wanted to hear from the parties on whether the “offending sections should be struck down in their entirety”. They have been given until June 4 to present their views and the judge said he would deliver his judgment the following month.
But speaking at a post-Cabinet media briefing , Minister in the Ministry of the Attorney General, Stuart Young, said the State plans to appeal the judge’s decision.
“It is always preferable to have the final courts of appeal pronounce upon matters so that citizens can rely upon a settling of the law. The government’s role in appealing is really quite simple, it is to cause a settling of the law,” he said.
“If you were to divorce yourself from the judgement and simply look at the principle, it is necessary for the principles to be settled….When there is a heartfelt view of matters where society is expressing views of different ends of the spectrum, it is imperative to settle the law and, therefore, the appeal is a matter of course.”
“If you were to leave the law unsettled, you run the risk of a second court, another High Court coming up with a contrary point of view. The particular law being tested is one of approximately 27 other laws that can be viewed to be discriminatory, and therefore if you were to go to court on another of these laws, a judge may come up with another point of view, both at High Court levels…Therefore, it’s important to settle the law, and the only way the law can be settled is through the appellate process,” Young added.